Period Of Limitation For Execution Of Partition Decrees Is Independent Of Engrossment: Allahabad High Court

The Allahabad High Court has held that the period of limitation for execution of a partition decree is independent of it's engrossment. It also held that stamp duty on engrossment of the partition decree is different and operates in a different field from court fees payable on execution or appellate proceedings. “As to when would such right to apply for engrossment of a final decree on stamp paper would arise, the Court holds that since executability/enforceability of a partition decree is not dependent upon its engrossment on stamp papers and wherever the decree attains finality, the period of limitation for its execution starts independent of engrossment. The limitation for execution being 12 years as per Article 136, if any party moves an application at any time during subsistence of period of limitation for execution, the application would remain withintime, inasmuch as 'right to apply' would accrue and continue to remain alive at any point of time during the said period of limitation,” held Justice Kshitij Shailendra. In a partition suit, parties entered into a compromise and a preliminary decree was drawn. Parties applied for preparation of joint Kurra and paid requisite court fees. Thereafter, final decree was drawn. Some defendants applied for engrossment of final decree on non-judicial stamp papers which was permitted by Additional District and Sessions Judge, Court No. 1, Mainpuri, (A.D.J.).The aforesaid order was challenged before the High Court. Regarding difference between stamp duty and court fees, the Court held that both are governed by separate acts and operate in different fields. The Court held that partition decree not engrossed on a stamp paper becomes non-admissible evidence under Section 35 of the Act, 1899, however, Court fees relates to institution and prosecution of proceedings in a court of law, and non-payment of court fees does not affect admissibility as evidence. “The obligation to engross a final decree for partition on non-judicial stamp paper is a post-adjudicatory fiscal incident arising from the transformation of a declaratory decree into an executable instrument of partition and bears no juristic or fiscal correlation with the levy or sufficiency of court fees at any stage of the suit or its execution.”The Court noted that the Trial Court had observed that since the application for engrossment was made within 3 years from the dismissal of Special leave petition filed before the Supreme Court, it was within limitation as per Article 137 of the Schedule contained in the Limitation Act. Article 136 the Schedule contained in the Limitation Act provides for execution of decrees other than decree for mandatory injunction within 12 years period. Article 137 provides limitation for any other application which has not been specified elsewhere. It provides that the limitation starts from when the right to apply accrues. On this, the Court held that“…no date or period is fixed for furnishing stamped papers and it cannot be said that the period of limitation would begin from the date of engrossment of a decree on stamped paper.”“The Court may go even to the extent where the limitation of execution of the decree expires and the application for engrossment is moved thereafter. In that event, the executing court may be within its competence to dismiss the execution application as barred by limitation, however, in so far as the application for engrossment of the decree on stamp paper is concerned, the same being an independent aspect, the application can still be allowed and the decree can be engrossed.”Accordingly, the Court dismissed the challenge to order allowing engrossment. Case Title: Kamlesh Singh v. Pushpendra Singh Kama and 17 othersClick Here To Read/Download Order

Period Of Limitation For Execution Of Partition Decrees Is Independent Of Engrossment: Allahabad High Court

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Period Of Limitation For Execution Of Partition Decrees Is Independent Of Engrossment: Allahabad High Court

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