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TMI Blog2024 (10) TMI 675X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the Additional District Court, Parur and re-numbered as O.S.No.82 of 1960, in which, a final decree was passed on 09.03.1970. 4. The dispute revolved around is qua item no.4 of the plaint schedule property measuring an extent of 1 acre 57 cents in Sy.No.120/10 situated at Muppathepadam Kara, Kodungallur Village, Paravur Taluk, Kerala, which originally belonged to one Ayyapan, who had eight children. In the year 1085 M.E. Malayalam Era or the Malayalam Calendar. To get the corresponding year on the Gregorian Calendar, add 826 which makes it 1911 the said Ayyappan executed a mortgage in favour of one Kunjan and created a further mortgage in favour of the same mortgagee in the year 1093 M.E. Gregorian Calendar year 1919 On the death of Ayyappan, his six children assigned their 6/8 shares in favour of one Raghuthaman, by gift deed No. 2147 dated 17.07.1963 and the remaining 2/8 shares were obtained by the Defendant No.1, by name, Padmanabhan, as per the deed No.1491 of 1119 M.E. Gregorian Calendar year 1945 On the death of the mortgagee Kunjan, his rights devolved on the Defendant No.1 and the original plaintiff Padmakshy (who was a minor at that time). The Defendant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd and were eventually, allowed by the High Court, by the judgment dated 11.11.2011 which is impugned herein. 8. The first and foremost contention of the learned counsel appearing for the appellants is that the predecessor of the respondents (Raghuthaman) did not establish his independent right, title or interest in the property in question and he was only a pendente lite transferee and therefore, he cannot resist the execution of a decree filed by the original plaintiff / decree holder. Additionally, the learned counsel submitted that the decision in Chiranji Lal (D) by LRs. v. Hari Das (D) by LRs. (2005) 10 SCC 746 relied on by the High Court is not applicable to the facts of the present case. 9. The learned counsel appearing for the contesting respondent, on the other hand, submitted that the final decree was passed on 09.03.1970; it was engrossed on the stamp paper on 19.11.1990; the execution petition seeking delivery of possession of the property under the decree was preferred only on 13.03.1991, which was clearly barred by limitation as per Article 136 of the Limitation Act. That apart, the predecessor of the respondents under Order XXI Rule 99 CPC is entitled to rai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession. It also means that a third party to the decree has a right to approach the Court even after dispossession of the immovable property, which he was occupying. In the case on hand, the predecessor of the respondents was not a party to the suit and he was dispossessed from the property, in execution of the decree passed in the suit and therefore, he who is purported to be a stranger to the decree, can very well adjudicate his claim of independent right, title and interest in the decretal property as per Order XXI Rule 99 CPC. 15. In so far as the claim of appellants that the predecessor of the respondents, namely Mr.Raghuthaman, being pendent lite transferee and hence would have no locus to file the application seeking re-delivery, we have already held that "any person" not a party to the suit or in other words a stranger to the suit can seek redelivery, after he has been dispossessed. The term "Stranger" would cover within its ambit, a pendent lite transferee, who has not been impleaded. That apart, the facts in the present case disclose that the property stood transferred to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nance & Investment (India) Ltd. v. Omesh Mishra Memorial Charitable Trust, (2022) 15 SCC 176 : 2022 SCC OnLine SC 794, wherein it was held as follows: "24. On conjoint reading of the aforesaid provisions, it can be observed that under Rule 97, it is only the "decree-holder" who is entitled to make an application in case where he is offered resistance or obstruction by "any person". In the present case, as admitted by the appellant itself, it is a bona fide purchaser of the property and not the "decree-holder". As available from the material placed on record, it is the respondent Trust along with legal heirs of late N.D. Mishra who are the decree-holders and not the appellant. Therefore, it is obvious that the appellant cannot take shelter of Rule 97 as stated above to raise objections against execution of decree passed in favour of the respondent. Further, Rule 99 pertains to making a complaint to the Court against "dispossession" of the immovable property by the person in "possession" of the property by the holder of a decree or purchaser thereof. "25. It is factually not in dispute that the appellant purchased the said property from Mr Yogesh Mishra vide sale deed dated 12-4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the parties with respect to the immovable properties, it is considered as an instrument liable for the payment of stamp duty under the Indian Stamp Act. The object of the Stamp Act being securing the revenue for the State, the scheme of the Stamp Act provides that a decree of partition not duly stamped can be impounded and once the requisite stamp duty along with penalty, if any, is paid the decree can be acted upon. 25. The engrossment of the final decree in a suit for partition would relate back to the date of the decree. The beginning of the period of limitation for executing such a decree cannot be made to depend upon date of the engrossment of such a decree on the stamp paper. The date of furnishing of stamp paper is an uncertain act, within the domain, purview and control of a party. No date or period is fixed for furnishing stamp papers. No rule has been shown to us requiring the court to call upon or give any time for furnishing of stamp paper. A party by his own act of not furnishing stamp paper cannot stop the running of period of limitation. None can take advantage of his own wrong. The proposition that period of limitation would remain suspended till stamp paper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udge Bench of this Court rejected the contention that an unstamped preliminary decree is not enforceable and, therefore, the period of limitation begins to run when the decree is engrossed on the stamp paper. The Stamp Act is a fiscal measure with the object to secure revenue for the State on certain classes of instruments. The Stamp Act is not enacted to arm the litigant with a weapon of technicality to meet the case of his opponent. As there is no rule which prescribes any time for furnishing of stamp paper or to call upon a person to pay stamp duty on a preliminary decree of partition, the proposition that period of limitation would remain suspended till stamp paper is furnished and decree engrossed thereon was rejected." 19. Applying the ratio laid down in Chiranjilal case (Supra) to the facts of the present case, the High Court rightly set aside the order passed in the Execution Petition and remanded the matter to the trial court for fresh consideration, leaving all the issues including the independent right, title or interest claimed by the respondents in the property in question, to be adjudicated therein. Therefore, we do not find any infirmity or illegality in the judgme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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