Dinesh Maheshwari, J.@mdashThe defendant in a suit for partition (CO No. 41/1984) has preferred this first appeal u/s 96 of the CPC (''CPC'') seeking to challenge the order dated 07.07.2008 as passed by the learned District Judge, Bikaner disallowing his application dated 02.07.2007 whereby objections were raised against engrossment of the decree dated 19.04.1984 as passed in the suit on stamp papers. By the order impugned, the learned Trial Court, while overruling all the objections raised by the defendant-appellant has held that the decree in question was a final decree for partition and, thus, was to be engrossed on non-judicial stamp papers.
2. In this appeal, the office made a report on limitation and other aspects relating to the form of the papers filed by the appellant and pointed out certain defects that were removed on 07.08.2008 and then, the matter was placed before the Registrar (Administration) on 11.08.2008. The respondents Nos. 3 and 4 having appeared in caveat, the Registrar (Administration) directed that the matter be placed before the Court.
3. On 14.08.2008, while considering the matter for motionadmission, this Court expressed prima facie doubts on the competence of this first appeal u/s 96 CPC looking to the nature and purport of the impugned order dated 07.07.2008 and thereafter, on 19.08.2008, learned Counsel for the parties were heard at length on the question of competence of this appeal.
4. The relevant background aspects as noticeable from the impugned order dated 07.07.2008 and the memo of appeal are that the suit for partition was filed by the plaintiff Ajay Kumar Singh (respondent No. 5 herein), while arraying his father Col. Hari Singh as defendant No. 1, his mother Smt. Virwati Devi as defendant No. 2, and his brothers Arun Kumar Singh (the appellant herein), Abhay Kumar Singh and Anil Kumar Singh as defendants Nos. 3 to 5. The plaintiff averred, inter alia, that he had received the property marked ''C'' in the plan Ex. P/1 under the family arrangement; and had developed the same with substantial investment as exclusive owner. It appears that the defendants filed a joint written statement of admission and, accordingly, the suit was decreed by the learned Trial Court on 19.04.1984 thus:
5. It appears further that for a long length of time, the parties did not take the requisite proceedings in the matter after the decree aforesaid and, as pointed out during the course of submissions and as also stated in the memo of appeal, although the appellant applied for preparation of final decree on 14.12.1992 but, for the father having executed a sale deed on 18.05.1993, withdrew the said application on 31.07.1993. It is also stated in the memo of appeal that his share being disproportionate as against the others, the appellant has filed a suit for partition on 21.05.2007 (registered as Civil Original Suit No. 214/2007) for treating the said decree dated 19.04.1984 as non-est and invalid; and the said suit remains pending.
6. It is also pointed out that the plaintiff-respondent No. 5 moved an application, only on 18.08.2006, before the learned Trial Court in the present suit No. 41/1984 for engrossing the decree on stamps. The appellant (defendant No. 3), on the other hand, moved the application on 02.07.2007 with the submissions that after passing of the preliminary decree on 19.04.1984, proceedings for preparation of final decree were not undertaken and before that, the defendant No. 1 Col. Hari Singh proceeded to alienate the part of the property on 15.05.1990 and 18.05.1993 and then, the defendant No. 1 expired on 23.08.1998. It was asserted by the appellant that the application for engrossing the final decree on the stamp papers having not been filed in time, the suit was rendered redundant and was required to be dismissed. It was also submitted that the daughters of defendant No. 1 were the other legal representatives who had not been taken on record and in their absence, the suit could not be proceeded further. The plaintiff Ajay Kumar Singh and the defendant No. 4 Abhay Kumar Singh filed replies to the application so moved by the appellant and submitted that the decree as passed in the suit on 19.04.1984 being the final decree for partition, no any proceedings in the suit were pending and, therefore, there was no requirement to implead any other person. It was also contended that if any party has sold his separated share, the same was in accord with law and there was no impediment in passing the final decree in the matter.
7. The learned District Judge took up for consideration in the first place the question of the nature of the decree dated 19.04.1984 and found that in this suit only a formal legal effect was to be given to the dealings between the parties and only one decree was to be drawn because the shares had already been settled under the family arrangement and the parties were in possession of the property falling in their respective shares. The learned District Judge observed that probably the suit for partition was filed merely to create evidence; and was of the opinion that even when it Were stated to be a preliminary decree, such nomenclature was of no effect as the decree in question was essentially in the nature of a final decree because nothing remained to be done and only the decree was to be engrossed on the stamp papers. The learned District Judge further observed that the fact of demise of the defendant No. 1 Col. Hari Singh was of no effect nor his four daughters were necessary parties to the suit. The learned District Judge distinguished the decisions as cited on behalf of the appellant and found that the said decisions, cited essentially on the assumption that the decree in question was a preliminary decree, were entirely irrelevant and inapplicable. The learned District Judge, inter alia, observed:
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8. The learned District Judge, therefore, proceeded to reject the application moved by the appellant with the observations that the objections as raised were entirely baseless and the decree was to be engrossed on furnishing of the non-judicial stamp papers,
9. Aggrieved, the objector-appellant has preferred this appeal seeking to challenge the order dated 07.07.2008 and, on the competence of this appeal, it has been stated in ground (b) of the memo of appeal that,
(b) That at the outset it is kindly submitted that the as per the settled principles of law, every order made in a suit for partition after the framing of preliminary decree is a decree in itself, hence the aforesaid impugned order dated 07-07-2008 is liable to be challenged by way of an appeal, because as per definition of decree given in Section 2 of the Code of Civil Procedure.
10. Learned Counsel for the appellant has strenuously contended that by the order impugned, the learned Trial Court has adjudicated on the question of competence of the suit and so also on the executability of the decree in question; and, according to the learned Counsel, the impugned one being in the nature of final order, is open to appeal. Learned Counsel has further referred to the definition of the decree as contained in Section 2(2) of the CPC and contended that the order impugned containing the directions that the decree be engrossed on the stamp papers after adjudication on the objections raised by the appellant against such engrossment, is in the nature of a decree and could be questioned in this appeal. Learned Counsel has also referred to the amendment to Rule 1 of Order XLI of the CPC to point out that by way of such amendment, now the expression "judgment" has been substituted rather than the expression "decree". Learned Counsel has referred to and relied upon the decisions in
11. Learned Counsel appearing for the respondents Nos. 3 and 4 in caveat have opposed the submissions as made on behalf of the appellant on the maintainability of this appeal and argued that the order dated 07.07.2008 does not answer to the description of a decree or any such order that may have a force of decree and hence, the said order cannot be considered open to challenge in appeal u/s 96 CPC. Learned Counsel have emphasized that by the order impugned, no controversy in the suit having been adjudicated upon, it does not amount to a decree and cannot be challenged by way of appeal u/s 96 CPC. Learned Counsel have further emphasized that the decree as passed in this case on 19.04.1984 had been a final decree as nothing further remained to be done so far adjudication part was concerned and have referred to the decision of the Hon''ble Supreme Court in the case of
12. Having given a thoughtful consideration to the submissions and having examined the material placed on record with reference to the law applicable, this Court is clearly of opinion that the impugned order dated 07.07.2008 cannot be termed a decree nor is having the force of a decree nor could be deemed to be a decree; and the same cannot be challenged by way of an appeal u/s 96 of the Code of Civil Procedure.
13. The fundamental fact that the decree dated 19.04.1984 as passed in this suit was a final decree for partition is not far to seek and rather does not call for much of the discussion. It is apparent from the observations as made by the learned District Judge, and not disputed by the appellant either, that in this suit for partition as filed by the plaintiff-respondent No.5, a written statement of admission was filed by the defendants and the parties being not at issue, the decree came to be passed by the learned Trial Court. Although, the expression
14. Apposite it shall be to refer to the definition of the decree as contained in Section 2(2) of the CPC that reads as under.
"decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall notinclude-
(a) any adjudication from which an appeal lies an as appeal from an order, or
(b) any order of dismissal for default.
Explanation.-A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final;"
15. Thus, the decree means a formal expression of such adjudication that conclusively determines the rights of the parties in regard to all or any of the matters in controversy in the suit, so far the Court expressing it is concerned. Coming to the deeming part of the definition later, relevant it is to notice in the first place the explanation to Section 2(2) of the Act whereby the decree is treated preliminary when further proceedings remain to be undertaken before the suit could be completely disposed of and it is final when the adjudication completely disposes of the suit; it may be partly preliminary and partly final too. The emphasis, obviously, is upon disposal of the suit so as to consider the character of the ''expression'' in question.
16. A reference to the scheme of the CPC makes it further clear that in a civil suit, the Court proceeds to frame issues under Order XIV when material proposition/s of fact or law are affirmed by the one party and denied by the other and then, the Court proceeds to determine such issues. However, under Order XV of the Code of Civil Procedure, dealing with ''Disposal of the Suit at the First Hearing, when the parties are not at issue on any question of law or of fact, the Court may at once pronounce its judgment. Under Order XV Rule 2, when there are more than one defendants and any of the defendant is not at issue with the plaintiff on any question of law or of fact, the Court may at once pronounce its judgment for or against such defendant and the suit would proceed only against the other defendants and a decree would follow when such judgment is pronounced. Order XV deals with such kind of a scenario where the parties are not at issue and the pronouncement by the Court results in disposal of the suit so far such parties are concerned.
17. The fact that final decree for partition could be passed in the very first instance has clearly been highlighted by the Hon''ble Supreme Court in Renu Devi''s case (supra) thus:
If the rights of the parties are finally determined and no further inquiry remains to be held for the purposes of completing the proceedings in partition then there is nothing in law which prevents the Court from passing a final decree in the very first instance. Often such are the cases which are based on compromise. The present one is such a case.
18. The position in the present suit as filed by the respondent No. 5 and as gone uncontested by the defendants had been more or less the same. In such a situation, whatever was required for the disposal of the suit is contained in the decree dated 19.04.1984 and hence, therein the learned Trial Court merely ordered in the last that after production of the stamp papers, final decree be issued. The directions were not for taking up any proceedings for preparation of final decree but only for issuance of final decree. The decree in question was nothing but a final decree for partition and was merely to be engrossed on stamp papers to be supplied by the parties.
19. Once the conclusion is reached that the decree in question was the final decree for partition and merely the act of engrossing the same on stamp papers remained, this Court is clearly of opinion that during the proceeding when the decree was sought to be engrossed on the stamp papers, even if some questions were posed and the Court proceeded to determine the same, it cannot be said that it were that kind of adjudication that the order on such determination would also be treated to be having a force of decree or deemed to be a decree so that the same could be challenged in appeal u/s 96 of the Code of Civil Procedure.
20. A decree in a suit for partition declares the rights of the parties in an immovable property and provides the shares to the parties and, for its nature, is considered to be an instrument liable for payment of stamp duty. The object of Stamp Act being to secure revenue for the State, under its scheme, a decree for partition not duly stamped could be impounded; and could be acted upon only when the requisite stamp duty with penalty is paid. The Hon''ble Supreme Court in the case of Dr. Chiranji Lal (supra) has clearly pointed out that engrossment of final decree on stamp paper would relate back to the date of the decree and the beginning of period of limitation for executing such a decree cannot be made to depend upon the date of engrossment of such decree on stamp paper. The Hon''ble Supreme Court has also pointed out that no date or period is fixed for furnishing stamp papers and there is no rule requiring the Court to call upon or give any time for furnishing of stamp paper; but a party, by his own act of not furnishing stamp paper, cannot stop running of the period of limitation.
21. The period of limitation for the purpose of execution of the decree is an issue entirely different but so far engrossment of the decree in question on stamp paper is concerned, the submission as made by the appellant that the same cannot be engrossed at all for much time having elapsed or something else having been done by the parties in the interregnum, cannot, in the prima facie opinion of this Court, be treated to be valid an objection. However, this Court would hasten to add that no final opinion is being expressed on the correctness or otherwise of the order dated 07.07.2008 or any aspect decided therein but so far the question of competence of this first appeal is concerned, this Court is clearly of opinion that the objection as raised by the appellant being only against engrossment of the decree on stamp paper, the same cannot be said to be related to any controversy in the suit so that any decision, on such objection, could be treated to be such kind of an adjudication that would be open to challenge by way of appeal u/s 96 CPC.
22. The submission as made by the learned Counsel for the appellant that with the amendment brought about in the year 2002, the expression ''judgment'' has appeared in Rule 1 of Order XLI CPC, in the opinion of this Court, does not make out any case on the question of maintainability of this appeal. Per Section 31 of the CPC (Amendment) Act, 1999, the earlier existing expression in Sub-rule (1) of Rule 1 of Order XLI that required memorandum of appeal to be accompanied by a copy of "decree appealed from and (unless the Appellate Court dispenses therewith) of the judgment on which it is founded", the expression ''judgment'' has been substituted. The said provision contained in Order XLI is not the substantive provision giving the right of appeal but only the procedural one laying down the requirements of form of appeal and as to what should be accompanied by the memorandum of appeal.
23. The substantive provision of first appeal remains u/s 96 of the CPC and by virtue of the said provision, an appeal lies from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court. The appeal contemplated by Section 96 CPC is essentially an appeal against the original decree. Of course, by virtue of the deeming part of Section 2(2) of the Code of Civil Procedure, the orders made in rejection of a plaint or in determination of any question u/s 144 are deemed to be included in the definition of decree and thus, could be treated open to challenge in appeal u/s 96 CPC for the order itself being in the nature of the decree, but the fundamental fact remains that regular appeal could be filed against a judgment and decree or an order deemed to be a decree and not against every kind of the order passed by the Trial Court. Mere alteration of the scheme of Rule 1(1) of Order XLI where earlier the memorandum of appeal was required to be accompanied by a copy of decree and so also copy of judgment, unless the copy of judgment was ordered to be dispensed with by the Appellate Court, and now the expression ''decree'' has been substituted by ''judgment'', in the opinion of this Court, does not override the substantive provision of appeal as contained in Section 96.
24. The submission as made by the learned Counsel for the appellant that the direction for engrossment of a decree itself amounts to adjudication on the issue as to whether the decree in question could be engrossed on stamp papers or not and, therefore, the impugned order be treated to be of such nature that could be challenged in appeal, has its own shortcomings. Engrossment of final decree for partition on stamp paper is an act required to be done by law and even when an objection is raised against or in relation to such process of engrossment and is adjudicated upon, such adjudication cannot be said to be determination of any of the rights of the parties with regard to any of the matters in controversy in the suit. The objection against engrossment as adjudicated upon in this case has been not of an adjudication in relation to any matter in controversy in the suit. Every procedural aspect of the matter when dealt with by the learned Trial Court does not necessarily become an adjudication leading to a decree or an order having the force of decree.
25. Learned Counsel also suggested that by the order impugned, the Trial Court has adjudicated upon executability of the decree and hence, the same be treated to be open to challenge in appeal. In the first place, this Court would only express its reservations on such proposition as suggested on behalf of the appellant because it is difficult to find if the learned District Judge has by the impugned order dated 07.07.2008 decided anything on executability of the decree. Yet and if such argument is taken on its face value, again, such adjudication is not in determination of any matter in controversy in the suit and would obviously not make the order impugned a decree or a deemed decree.
26. Learned Counsel for the appellant has strongly relied upon the decision of the Hon''ble Bombay High Court in the case of Parashuram Rajaran Tiwari (supra). A bare look at the said decision makes it clear that a preliminary decree had been passed and the plaintiff claimed that by reason of his father''s death, his share Was augmented from 1/8 to 1/7 and such an application moved by the plaintiff was declined by the Trial Court. The Hon''ble Bombay High Court held that until there was a final decree in the partition suit, the suit remained pending and, thus, the application by the plaintiff was moved in a pending suit. The Court further pointed out that the order of the Trial Court essentially meant refusal to award the plaintiff his augmented share and that was a clear determination of his right which was refused. The said decision, apart from being not applicable because therein the suit was pending after passing of preliminary decree, brings to the fore the distinction essential for the present purpose that when the application is made in the pending suit and until final decree is passed, if there is any such kind of adjudication that is in the nature of determination of a right, such an order could be considered open, to challenge in appeal. Herein, as pointed out above, final decree for partition had already been passed on 19.04.1984 and, by the order dated 07.07.2008, no such adjudication has been made so as to be determinative of any of rights of the parties qua the matters in controversy in the suit. In fact, basically there was never any ''matter in controversy'' in the present suit.
27. Learned Counsel further strongly relied upon the decision of the Hon''ble Kerala High Court in the case of Janardhanan and Ors. (supra). Therein, the appeal was filed against the order dated 10.03.1986 as passed in IA No. 217/1979 that was moved in OS No. 171/1975. It is noticed in the referred decision that as per the impugned order the sub Court had passed a final decree and directed production of non-judicial stamp papers of the required value. The appeal was preferred against the said order dated 10.03.1986 and was accepted by Registry without noting any defect and was admitted by a Division Bench of the Court and ultimately came up for hearing in April 1995 before the learned Single Judge, who proceeded to observe that the appeal filed without producing a certified copy of final decree was incompetent and not maintainable. However, the learned Single Judge dealt with the matter on merits too and found no case for interference. The Hon''ble Division Bench though concurred with the findings of the learned Single Judge on the merits of the case but did not agree with the view taken on the question of maintainability of appeal. The Hon''ble Division Bench said that as per the order passed on the said IA No. 217/1979, "the final decree application was finally disposed of passing a final decree as indicated in the order". The Hon''ble Division Bench referred to the position of law that in the exceptional circumstances appeal could be entertained without certified copy of the decree and held that in the peculiar circumstances of the case, the appeal was maintainable and could be entertained without certified copy of the decree treating the order or judgment appealed against itself to be a decree as defined In Section 2(2) of the Code of Civil Procedure. The Division Bench further pointed out one of reasons for such conclusion that if a party in whose favour a final order had been passed would fail to supply stamp papers in time and the party against whom the order is passed, wants to challenge the correctness of the findings in the final order before the final decree is actually drawn up on stamp papers, it would be unreasonable, harsh and inequitable to insist upon production of the copy of the decree and thus compel him to supply stamp papers, sometimes of considerable amount, to draw up the final decree on it, only for the purpose of challenging the same. The basic distinction, again, remains that only by the questioned order a final decree was passed whereas the position in the present case is entirely different where, as noticed, final decree had already been passed way back on 19.04.1984; The said decision, too, has no application to the present case.
28. Learned Counsel for the appellant has also relied upon the decision of the Hon''ble Supreme Court in the case of Phoolchand (supra). The said decision was rendered in relation to the then existing provisions of Order XLI Rule 1 of the CPC and even while holding the said provision to be of a mandatory requirement and that in the absence of copy of the decree, the filing of the appeal would be incomplete and defective and incompetent, the Hon''ble Supreme Court pointed out that there could be circumstances where the appeal may be competent even though a copy of the decree may not have been filed. In the said case, the Hon''ble Supreme Court noticed that after framing of the preliminary decree, the Court proceeded to vary the shares. The order of the Court deciding the dispute about change in shares specified in the preliminary decree was treated, to be a decree liable to appeal. As already pointed out, in the present case, nothing has been done by the learned Trial Court so far the rights of the parties in relation to the subject-matter of the suit are concerned.
29. Learned Counsel has also relied on a decision of this Court in the case of Boards & Boards Pvt. Ltd. (supra) but the said decision has got no relevance or bearing on the question at hands. Therein, by the order impugned, issue No. 3 was decided by the learned Trial Court to the effect that the suit being barred by limitation was liable to be dismissed. Such an order was treated to having the force of decree and though the parties concerned preferred a revision petition for no formal decree having been drawn by the learned Trial Court, this Court directed the Trial Court to prepare a decree and the revision petition was directed to be registered as appeal. In the present case, for the view already taken by this Court that nothing had come up of adjudication In the suit wherefor the order dated 07.07.2008 be treated to be a decree, the said decision is of no assistance to the appellant. The principle as enunciated in Hameed Joharan (supra) that the period of 12 years, so far execution of decree is concerned, begins to run from the date on which decree becomes enforceable and not when the decree becomes executable and as reaffirmed by the Hon''ble Supreme Court in the case of Dr. Chiranji Lal (supra) are not required to be dilated upon in the present order for the issue herein being limited to the question of the competence of this first appeal u/s 96 of the CPC against the order dated 07.07.2008. The said decisions, however, do not make out a case in favour of the appellant that the present appeal, against the order dated 07.07.2008, could be treated as competent.
30. In the aforesaid view of the matter, this Court is clearly of opinion that the challenge to the order dated 07.07.2008 by way of this first appeal cannot be countenanced; and this appeal remains incompetent.
31. Before parting with the matter, this Court considers it appropriate to put a note of caution for the Registry. It is noticed that this appeal was filed against the order dated 07.07.2008 and also suggestively against the decree dated 19.04.1984. So far the decree dated 19.04.1984 is concerned, this appeal, filed only on 29.07.2008, could not have been treated competent against the same without a prayer for condonation of delay that has never been made. The office dealt with the memo of appeal as presented precisely with reference to the order dated 07.07.2008 and treated it to be a first appeal having been filed within 22 days of passing of the order. However, while doing so, the office omitted to notice that the impugned one (the order dated 07.07.2008) was not a decree and not even a judgment. No any mention of this relevant aspect was made in the Stamp Reporter''s Report. The result had been that this appeal was registered as regular first appeal and placed for admission before the Registrar (Administration). It was only because the contesting respondents appeared in caveat that the matter was placed before the Court for admission else, when the regular appeals are placed before the Registrar (Administration), they are usually admitted as a matter of course. In Janardhanan''s case, as relied upon by the learned Counsel for the appellant, the Division Bench of the Hon''ble Kerala High Court was at pains to point out that it Was upto the Registry to note the defects, if any, and return the memorandum as defective but without noting any defect, the Registry had numbered the appeal and placed the same for admission and then, the appeal was admitted and came up for final hearing later and was decided after a lapse of about 9 years; and those were also the circumstances taken into consideration by the Hon''ble Kerala High Court that it would be too harsh and inequitable to treat the matter incompetent at the belated stage. While dealing with such matters, it is definitely required of the Registry to consciously to examine the papers and in that regard, the efficiency of the Stamp Reporter concerned is also required to be supervised and requisite measures should be taken so that the matters are dealt with precisely in accordance with law.
32. For the discussion aforesaid, challenge to the order dated 07.07.2008 by way of this first appeal u/s 96 of the CPC is not countenanced. It may be pointed out that so far the decree dated 19.04.1984 is concerned, though the memorandum of appeal has been framed as if challenging the same too but such has not been the submission on behalf of the appellant on the competence of this appeal nor this appeal would have been treated competent against the said decree dated 19.04.1984 for the same having been passed rather on the consent of the parties, and way back in the year 1984.
33. For all the reasons aforesaid, this appeal is required to be dismissed as incompetent. However, it is made clear that this Court has not pronounced on any other aspect of the matter and this order shall not otherwise be of any impediment for the appellant to question the order dated 07.07.2008 in accordance with law.
35. Subject to the observations aforesaid, this appeal is dismissed as incompetent.
