The Calcutta High Court has clarified that a final decree in a partition suit cannot be executed unless the requisite stamp duty has been paid and the decree has been duly engrossed on stamped paper, holding that compliance with the Stamp Act is a condition precedent for execution and enforcement of such a decree. The court’s ruling came in the context of a revision petition challenging orders of the executing court which had refused to recall a writ of delivery of possession and had declined to stay execution of a final decree passed in a long-pending partition suit. The dispute arose from Title Suit No. 1843 of 2005, in which a preliminary decree for partition was followed by a final decree that allocated one-fourth shares of the property to each co-shareholder. The final decree had survived appellate scrutiny, with both a Division Bench and the Supreme Court dismissing challenges to it, and the decree holders subsequently initiated execution proceedings. During execution, the judgment debtor objected to enforcement on the basis that the decree was not sufficiently stamped, arguing that stamp duty had only been paid in respect of the decree holder’s share, and not on the entire property sought to be partitioned, and that until full stamp duty was paid on the entire value of the property the final decree could not be treated as executable. The executing court had rejected this objection, noting that the office had assessed stamp duty and the decree had been engrossed upon payment by the decree holder in terms of Article 45 of Schedule 1A of the Indian Stamp Act applicable in West Bengal, recording that since all parties were allotted equal one-fourth shares, stamp duty equivalent to one such share had been paid.
Before the High Court, the decree holders undertook to pay the stamp duty for the entire property so as to remove any technical impediment to execution, with liberty to recover the respective contributions from the other co-sharers. The High Court took note of Supreme Court rulings in Shankar Balwant Lokhande v. Chandrakant Lokhande and Kattukandi Edathil Krishnan v. Kattukandi Edathil Valsan reiterating that a final decree becomes executable only after it is drawn up and properly stamped, observing that until the decree is engrossed on the requisite stamp paper, it cannot be acted upon or enforced under the Code of Civil Procedure and the Stamp Act. The court observed that procedural requirements should not be permitted to frustrate the fruits of litigation. Accepting the undertaking of the decree holders, the Bench granted them liberty to deposit the entire stamp duty for the total property and to recover the proportionate shares from the other co-owners through due process, holding that such payment would satisfy the condition precedent for execution of the decree.
The High Court directed that upon such payment of the stamp duty for the entire property, the executing court should proceed with execution and ensure full satisfaction of the decree within a specified period of one month, vacating all interim orders. By doing so, the court recognised both the necessity of compliance with statutory requirements relating to stamp duty and the practical need to prevent undue delay in execution. The revisional application was accordingly disposed of with the liberty granted to the decree holders, and the orders of the executing court were effectively modified to give effect to the High Court’s ruling on the requirement of payment of stamp duty and the mechanism for recovery of contributions from co-sharers once such duty is deposited.
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