ORDER
Swamidurai, J.
1. Civil Revision Petition No. 42 of 1990 arises against the order made in E.P. No. 6 of 1988 in O.S. No. 5 of 1960 on the file of the learned Subordinate Judge, Pattukottai. The first defendant/first judgment-debtor, is the petitioner in the civil revision petition and the plaintiff/decree holder is the respondent. A preliminary decree against the first defendant/petitioner was passed on 8.2.1965 and the final decree was passed on 24.1.1979. In this E.P., the respondent has claimed a sum of Rs. 1,16,315.55. The E.P. is filed under Order 21, Rules 54,66 and 72 and under Section 151 C.P.C. for realisation of the said amount by order of attachment and sale of the property of the first defendant mentioned in the E.P. The execution is resisted by the first defendant by filing a counter contending inter alia that the plaintiff/decree holder is not entitled to claim his share in the execution petition. The preliminary decree is to the following effect:
That the plaintiff be and hereby entitled to recover 1/2 share in the outstanding of Rs. 52,000 in the E. Schedule. So, any claim contrary to that which is provided for in the preliminary decree cannot be countenanced.
Further, the petitioner herein has submitted that he has preferred an appeal to this Court against the final decree and that the matter is pending in this Court. The execution petition, according to him is therefore premature. The lower court negativing the contention of the petitioner herein, allowed the execution petition to be proceeded with further. The lower court in its order has observed that even if the counsel fee has been exaggerated in the execution petition, it could be reduced later on after the properties were sold and the sale proceeds were collected. The lower court also has observed that there is no evidence to show that an appeal has been filed in this Court as against the final decree and that there is no stay also from this Court. With this observation, the lower court allowed the execution petition.
2. In this C.R.P. No. 42 of 1990, the petitioner has contended that the decree-holder had admitted in the lower court that he has been in exclusive possession and enjoyment of 24 acres of land. The other contention raised by the petitioner herein, is that the parties are separately in possession and enjoyment of the properties and that they should be allowed to retain those properties.
3. C.R.P. No. 610 of 1990 arises against the order made in E.P. No. 14 of 1989 in O.S. No. 5 of 1960 on the file of the learned Subordinate Judge, Pat-tukottai. The E.P. was filed by the plaintiff/decree holder respondent herein under Order 21, Rule 35, C.P.C. for delivery of possession of the properties mentioned in the execution petition. This E.P. was resisted by the first defendant/judgment debtor, the petitioner herein by filing a counter to the E.P. contending inter alia that the decree-holder/respondent herein is not entitled to delivery of possession of the properties on the ground that the execution is laid mainly basing on the commissioner’s report for which the petitioner herein has filed his objections. The petitioner further contended that the decree-holder himself filed an application for amendment of decree and that without getting any orders on the same, he has filed an execution petition for delivery of possession. The contentions are not relevant for the disposal of the civil revision petition.
4. The lower court has observed in the order that whatever objections the first defendant has got to say against this execution, he could make such objections before the Amin at the time of delivery. In this way, the lower court-has repelled the contentions of the first defendant and allowed the execution application for delivery of possession.
5. C.R.P. No. 1038 of 1991 arises against the order made in I.A. No. 136 of 1991 in I.A. No. 303 of 1971 in O.S. No. 5 of 1960 in the file of the Subordinate Judge, Thanjavur. The first defendant in O.S. No. 5 of 1960 is the petitioner herein and the plaintiff is the respondent. The first defendant filed an application I.A. No. 136 of 1991 before the lower court for setting aside the order dated 7.3.1979 striking off the copy petition (C.P. No. 515 of 1979) and to restore it and to pass further orders on the same. In the affidavit filed by him in support of I.A. No. 136 of 1991, the petitioner contended as follows: The suit O.S. No. 51 of 1960 was filed by the first respondent for partition and separate possession of the suit properties, a preliminary decree was passed. Thereafter, an application I.A. No. 303 of 1971 was filed by the respondent herein for passing a final decree and accordingly a final decree was passed on 24.1.1979 by the learned Principal Subordinate Judge, Thanjavur. After passing the final decree, the petitioner herein had applied for a certified copy of decretal order in I.A. No. 303 of 1971 for appeal to this Court in the copy application C.P. No. 515 of 1979, dated 24.1.1979. Even though final decree was passed on 24.1.1979, it was not drafted till February, 1987 by the office because general stamps were not submitted to the office. So, the copy application was struck off on 7.3.1979, The petitioner was under the bona fide impression that his counsel would have taken steps for complying with C.P. No. 515 of 1979. Since the date of filing of the copy application, the petitioner had not received any communication from his counsel with regard to copy application. The petitioner was suffering from acute jaundice and he was bed-ridden at that time and so, he was unable to pursue the matter for further proceedings. The petitioner was mentally upset also at that time. Due to the abovesaid reasons, the petitioner could not meet his counsel personally and instruct him. Everything happened due to the communication gap from his counsel also due to his ailment. Since the copy application was not represented in time, there was a delay in representation. The petitioner received a communication from his counsel at Madras that his appeal could not be numbered for want of decretal order passed in I.A. No. 303 of 1971, dated 24.1.1979. After receiving the communication, the petitioner presented an application I.A. No. 136 of 1991 for restoring the copy application which was struck off on 7.3.1979. The delay in representation is not wilful, but bona fide. The petitioner seeks for condoning the delay in setting aside the order dated 24.1.1979 made in C.P. No. 515 of 1975.
6. The petition I.A. No. 1.36 of 1991 was presented on 4.3.1991 in the lower court. It appears from the order that no notice was given to the plaintiff/respondent. The order dismissing I.A. No. 136 of 1991 was passed on 8.3.1991. The order is in Tamil and the true translation is as follows:
On 8.3.1991 arguments were heard. It is prayed to condone the delay for the reasons stated in the affidavit. The order striking off the copy application cannot be set aside by allowing this application. With the result, the application is dismissed.
As against this order made in 1. A. No. 136 of 1991, C.R.P. No. 1038 of 1991 is filed.
7. In the civil revision petition, the petitioner has submitted that if the order striking off the copy application is not set abide and the petitioner is not permitted to comply with the copy application and obtain a certified copy of the decree in the final decree application, the petitioner would lose his right of appeal which would result in irreparable loss and injury to him. The next contention is that no prejudice would be caused to the respondent if the order striking off the copy application is set aside and copy application is restored to file. According to him, the lower court failed to consider the fact that there is sufficient reason for the delay and the dismissal of the petition on the ground that there is no sufficient reasons for the delay, is not correct.
8. Mr. K.T. Palpandian, learned Counsel appearing for the petitioner in all the C.R.Ps. contended that the lower court ought not to have rejected the copy application on the ground that general stamps were not furnished within the time mentioned by it. I have called for the records from the lower court and perused them.
9. The admitted facts are that the preliminary decree was passed on 8.2.1965 and that a first appeal in A.S. No. 339 of 1965 was filed against the preliminary decree in this Court and this Court disposed of the first appeal by judgment dated 13.7.1972. As against the same S.CO.P. No. 107 of 1973 was filed before the Supreme Court of India and it was dismissed on 22.3.1974. Thereafter, the plaintiff filed I.A. No. 303 of 1971 for passing a final decree and final decree was passed on 24.1.1979. In the meantime, the first defendant filed A.S.S.R. No. 36045 of 1979 as against the attachment made in the final decree application I.A. No. 303 of 1971 with C.M.P. No. 13718 of 1988 for condoning the delay in representation of the appeal and the said C.M.P. for condoning the delay of 1365 days in representing the first appeal was dismissed on 25.10.1989 by a Division Bench of this Court. Another appeal A.S.S.R. No. 39885 of 1989 was filed by the petitioner against the decree made in I.A. No. 303 of 1971 with C.M.P. Nos. 3850 and 3851 of 1990 for condoning the delay of 3854 days and the appeal is pending.
10. In C.R.P. No. 1038 of 1991, the points for consideration are whether there is sufficient cause for condoning the delay in filing the application I.A. No. 136 of 1991 seeking to set aside the order dated 7.3.1979 and to restore the said C.P. No. 515 of 1979 and for passing further orders on the same. The reason given by the petitioner/first defendant in his affidavit is that he was under the bona fide impression that his counsel who appeared on behalf of him, would have taken steps to comply with C.P. No. 515 of 1979, dated 24.1.1979. The other reason is that he was suffering from acute jaundice during the pendency of copy application and that he was bed-ridden. The third ground is that there is communication gap between himself and his counsel with regard to copy application filed on 24.1.1979. These are the main grounds stated in his application for condoning the delay in setting aside the order made in C.P. No. 515 of 1979, dated 7.3.1979. The lower court has dismissed this application on the ground that the application already dismissed need not be set aside on the ground stated in the affidavit and therefore, the lower court did not accept the case of the petitioner.
11. Mr. Palpandian, learned Counsel appearing for the petitioner pointed out the Rule 129 of Civil Rules of Practice. The copy application C.P. No. 515 of 1979 was presented on 24.1.1979 for a decretal order made in I.A. No. 303 of 1971, dated 24.1.1979. This was returned on 28.2.1979 by the court with an endorsement “general stamps to be given for drafting the decree”. Time was granted by seven days for compliance. Then on 7.3.1979, the lower court passed an order “C.P. not taken back” and so the order striking off was made on that day.
12. Chapter VII of the Civil Rules of Practice deals with issuance of certified copies. Rule 127 of the rules reads as follows:
Rule 127: Application for certified copy: (1) When a person is entitled to obtain a copy of a proceeding or document filed in, or in the custody of the court, he may present an application therefor to the Superintendent of Copyists or where there is no such officer, to the Chief Ministerial Officer in person or by his pleader or the latter’s authorised gumasta between the hours of 11.30 a.m. and 3 p.m. If the proceeding or document has been sent to another court, the application may, at the option of the applicant, be forwarded to the said court for compliance or be returned to him, for presentation to the said court.
(2) Copies of proceedings of High Court: Application for copy of a plaint, written statement, memorandum of appeal, Judgment, decree or other proceeding of, or in the custody of the High Court, may be made by any party to such proceeding to the court of first instance, or the lower appellate court and shall be transmitted by the said court to the High Court for disposal. The copy, if granted shall be transmitted by the High Court to the former court, and on payment of the prescribed fees, shall be delivered to the applicant. No copy of any proceeding of the High Court shall be granted by a subordinate court. An application by a person not a party to the proceeding shall be made directly to the High Court.
Rule 128 of the Rules gives the Form of application and it reads as follows:
Rule 128: Form of application: The application shall be in Form No. 51 and shall set out the name of the applicant and his position in the suit or proceeding and a description of the document of which a copy is required, and an application which is to be in proper form shall be returned for amendment.
Rule 129 of the Rules is the relevant rule for the purpose of this case and it reads as follows:
Rule 129: Notice as to stamp papers: Everyday between the hours of 3 and 5 P.M. a list showing the applications in which the records have been received and number of stamp papers required shall be prepared and affixed to the court’s notice board. Such list shall remain suspended for three days, or, if the last day is a holiday, till the next court day. If the required stamp papers have not been deposited by 3.00 P.M. on the fourth day counting from that on which the list was suspended or, if the fourth day is a holiday, then on the next court day, the application shall be struck off. Between hours 3 and 5 p.m. on each of the intermediate days, the applications upon which the requisite deposits have been made shall be struck off the list. The procedure above prescribed shall apply also to calls for additional stamp papers when the number first supplied has been found to be insufficient.
Provided that when the additional stamp papers called for are not deposited, but the stamp papers originally deposited are sufficient for the preparation of complete copies of one or more documents applied for the application shall be struck off only as regards the documents which cannot be prepared by reason of the insufficiency of the stamp papers supplied; but it shall be complied with by delivery of such of the completed copies as can be prepared on the stamp papers supplied, the decision of the superintendent as to the documents to be selected for copying being final: Provided further that it shall be open to the parties, after obtaining the previous order of the Chief Ministerial Officer of the court or such other person as the court may appoint for the purpose, to furnish white fullscap paper of durable quality with the requisite court-fee stamps affixed on each sheet in the place of the stamp papers called for and the rules applicable to the preparation of copies stamp papers shall apply to the copies so prepared.
13. Mr. K.T. Palpandian, learned Counsel for the petitioner submitted that the final decree was passed in I.A. No. 303 of 1971 on 24.1.1979. It was returned on 28.2.1979 for supply of general stamp papers for providing the decree by granting seven days time for the said purpose. The copy application was not taken back and so it was struck off on 7.3.1979. Copy stamps for engrossing final decree was filed on eight occasions for the value of Rs. 200, Rs. 200, Rs. 200, Rs. 200, Rs. 75, Rs. 1,000, Rs. 50 and Rs. 200 and the first copy stamp given for the value of Rs. 200 was dated 20.11.1984 and the last copy stamp furnished was dated 5.2.1986 for the value of Rs. 200 totalling to Rs. 2,125. The final decree was drawn on 24.2.1987 after the plaintiff had deposited the remaining stamp papers.
14. O.20, Rule 6-A runs as follows:
6-A Last paragraph of judgment to indicate in precise terms the relief granted:
(1) The last paragraph of the judgment shall state in precise terms the relief which has been granted by such judgment.
(2) Every endeavour shall be made to ensure that the decree is drawn up as expeditiously as possible, and in any case, within fifteen days from the date on which the judgment is pronounced; but where the decree is not drawn up within the time aforesaid, the court shall if requested so to do by a party desirous of appealing against the decree, certify that the decree has not been drawn up and indicate in the certificate the reasons for the delay, and there upon,
(a) an appeal may be preferred against the decree and in such a case the last paragraph of the judgment shall, for the purpose of Rule 1 of Order 41, be treated as the decree; and
(b) so long as the decree is not drawn up, the last paragraph of the judgment shall be deemed to be the decree for the purpose of execution and the party interested shall be entitled to apply for a copy of that paragraph only without being required to apply for a copy of the whole of the judgment; but as soon as a decree is drawn up, the last paragraph of the judgment shall cease to have the effect of a decree for the purpose of execution or for any other purpose; Provided that, where an application is made for obtaining a copy of only the last paragraph of the judgment, such copy shall indicate the name and address of all the parties to the suit.
The plaintiff has submitted the remaining stamp papers only on 5.2.1986. Thereafter only, final decree was drafted on 24.3.1987.
15. Learned Counsel for the petitioner submitted that unless non-judicial stamp paper is produced and duly engrossed on those papers, there is no decree at all and that the lower court should not have struck off the copy application C.P. No. 515 of 1979 on 7.3.1979. This is a partition suit and therefore, the final decree in the partition suit passed by the Civil Court is an instrument as defined in Clause (15) of Section 2 of the Indian Stamp Act and as such the decree can only be engrossed on stamp papers of sufficient value. In support of his contention, he relied on the judgment reported in The Board of Revenue, Madras v. Moideen Rowther (1955)2 M.L.J. 635 I.L.R. 1956 Mad 132 : A.I.R. 1956 Mad. 2O7 : 1955 M.W.N. 990(F.B.). In the above judgment, the Full Bench of this Court observed as follows:
A final decree for partition passed by a civil court is undoubtedly an instrument of partition as defined in Clause (15) of Section 2 of the Indian Stamp Act (II of 1899). Such a decree can only be engrossed on stamp papers of sufficient value. If the parties fail to furnish the requisite stamps, the court has no power to draw up the decree for partition. The court also has no power to draw the decree on unstamped paper or on stamp paper of insufficient value, and cannot impound under Section 33 of the Stamp Act the decree so drawn up. The court cannot itself draw up an invalid document and then take action consequent on its invalidity.
There is no provision in the Stamp Act which enables a court to adopt the procedure indicated in Rule 12(3) of Chapter 3 of Part II of the Civil Rules of Practice. Section 122 of the Code of Civil Procedure will not cover such a rule. In the absence of an express statutory provision to that effect, a court cannot make a party liable to stamp duty and penalty for omission to furnish stamp papers to enable the courts to draw up a valid decree for partition. Rule 12, Sub-rule (3) of the Civil Rules of Practice is ultra vires.
Learned Judges in the above decision followed the judgment of this Court reported in Kovanti v. Imbichi Koya (1946)1 M.L.J. 454, wherein it is held as follows:
…it may be open to the parties to approach the court which passed the decree and to request the court to pass a final decree after supplying the necessary stamp papers at any time, because as pointed out in Jotindra Mohan Tagore v. Bejoy Chand Mahatap (1904) I.L.R. 32 Cal. 483, the suit must be deemed to be pending. Be that as it may, the question which falls for our decision on this reference is whether the court itself can bring into existence an unstamped decree and then proceed to impound it. In our opinion, it-is too much of a strain on the language of Section 33(1) of the Act to say that the decree which the court draws up and signs is produced or comes before it in performance of its functions. It is equally inappropriate to speak of such an instrument as appearing to the Judge to be not duly stamped. The Judge knew even when he drew up the document that it was not duly stamped.
The Full Bench further held that on the failure of parties to furnish requisite stamps, learned Subordinate Judge in that case had no power to draw up the decree for partition. This judgment was also later on followed in Y. Laxmi Prasannam v. Y. Narasayya . It is observed in the said judgment as follows:
It is now well settled that a final decree for partition has no existence as a decree until it is engrossed on a proper non-judicial stamp paper, and till that it is done, the suit will be considered as pending.
16. In the present partition-suit, the plaintiff was given a decree and the petitioner/first defendant was also given some portion towards his share in the decree. In the plaint, the plaintiff claimed half share in plaint A, B, C, E and F and also one fourth share in plaint D schedule properties and other properties to be found as joint family properties on taking account. The plaintiff also wanted appointment of a Commissioner to take account of all the joint family outstanding and other incomes of the family properties and also to divide the plaintiffs share in the suit properties by metes and bounds and allow the plaintiffs share in his favour. The plaintiff paid court fee for his half share of Rs. 1,37,639.50. The plaintiff paid court fee for the relief of partition under Section 37(2)(ii) and also under Section 35(1)of the Tamil Nadu Court Fees Act. The total court fee paid by him is Rs. 207.50. The suit was decreed on 8.2.1965 and a preliminary decree was passed on that date. The relevant portion of the judgment of the trial court is as follows:
Issue No. 7: To sum up, I find that the plaintiff will be entitled to partition and separate possession of his half share of the properties described in the A schedule and B schedule except items 15 and 22 of B schedule and the house property mentioned as item 2 in the plaint B Schedule. In the rest of the items, he will be entitled to a partition and separate possession of his half share. The plaintiff will not be entitled to the property described in plaint C. schedule. So far as D schedule properties are concerned, there is no dispute. It will be divided in accordance with the shares as indicated in the plaint. The Commissioner will divide the properties having regard to the objections put forward by the 5th defendant as regards the correctness of the survey number and also the extent available. So far as the schedule properties are concerned, the plaintiff will be entitled to a half share in a total sum of Rs. 52,700 and the 1st defendant who is in possession of the entire joint family assets and who has collected a portion of them will be liable to account for his share. So far as the jewels claimed in the E schedule is concerned, the plaintiff has failed to prove that they belonged to the joint family and they are available for partition. The plaintiff therefore is not entitled to any share in the jewels sovereigns and silvers. So far as the F schedule properties are concerned, the evidence on the side of the plaintiff is very meagre. The evidence shows that Alagappa and Chinnappa have been living separately having separate mess on account of disagreement among womenfolk. It is hardly possible to believe that they would be having any manure carts or plough bulls or granaries, etc. Further, the plaintiff has not established that any of the items mentioned in F. schedule are joint family moveables or when they were purchased or by whom and how they are enjoyed. So, I do not think that any of the items can be held to be items available for division. So far as G schedule properties are concerned, there is no dispute about the existence of the trees or the right of the plaintiff, the 1st defendant and other pangalis to divide the same. So, there will be a division of the trees as prayed for.
In the result, preliminary decree for partition and separate possession of the plaintiffs half share in the manner indicated above, is passed. The 1st defendant will be entitled to his share in the properties in the possession of defendants 4 and 15. A commissioner will be appointed to. divide the properties by metes and bounds. The 1st defendant will be liable to account for the outstandings as referred to in the judgment. The suit will stand adjourned sine die. The costs of this suit will come out of the estate.
17. The first defendant has filed a separate statement on 7.12.1959 in the suit and additional written statement also later on. Defendants 2 and 3 have also filled a written statement. The 4th defendant has filed a written statement and also an additional written statement. The 5th defendant filed a written statement and also an additional written statement. Defendants 6 to 8 and 9 and 10 have filed a written statement. The 11th defendant has filed a written statement. Defendants 12 and 13 have not filed any written statement. The 14th defendant has filed a written statement. The 15th defendant has also filed a written statement. The first defendant is the petitioner in the civil revision petition and he was granted a decree in a final decree application No. 303 of 1991 for certain shares in some of the properties. The first defendant claimed shares also in his written statement. But it appears from the records that the first defendant has not paid any court-fee for his share. Section 37 of the Tamil Nadu Court-Fee Act deals with the Court-fees payable in a suit for partition and it reads as follows:
37. Partition suits: (1) In a suit for partition and separate possession of a share of joint family property or of property owned, jointly or in common, by a plaintiff who has been excluded from possession of such property, fee shall be computed on the market value of the plaintiffs share.
(2) In a suit for partition and separate possession of joint family property or property owned, jointly or in common by a plaintiff who is in joint possession of such property, fee shall be paid at the following rates:
When the plaint is presented to-
(i) A District Munsif’s Court… Rupees thirty
(ii) the City Civil Court, Rupees thirty if the value of Madras or a Sub-Court plaintiffs’ share is Rs. 5,000 District Court: or less;
Rupees one hundred if the value is above Rs. 5,000 but below Rs. 10,000 and Rupees two hundred if the value is Rs. 10,000 and above,
(iii) the High Court: Rupees three hundred.
(3) Where, in a suit falling under Sub-Section (1) or Sub-Section (2), a defendant claims partition and separate possession of his share of the property, fee shall be payable on his written statement computed on half the market value of his share or at half the rates specified in Sub-section (2), according as such defendant has been excluded from possession or is in joint possession.
The first defendant has not paid the court-fee for his share. If court fee is not paid, he is not entitled to a decree at all.
18. Mr. M.V. Venkataseshan, learned Counsel for the respondent contended that the petitioner herein could have filed an appeal with a certified copy of the judgment and with a certificate of the trial court in the suit embodying the last paragraph of the judgment as provided under, Order 20, Rule 6-A, C.P.C. This Order 20, Rule 6-A, C.P.C. is a newly inserted provision. The Select Committee felt that it should be made obligatory on the part of the court to draw up the decree within fifteen days from the date on which the judgment is pronounced. In case it is not possible to draw up the decree within the period so fixed, the court, on a request by a party desirous of appealing against the decree, should be required to certify that the decree has not been drawn up and also to indicate in the certificate the reasons for the delay. An appeal might be referred on filing a copy of the last paragraph of the judgment, but as soon as the decree is drawn up the last paragraph of the judgment should cease to have the effect of a decree.
19. Mr. Venkataseshan, learned Counsel for the respondent contended that the petitioner could have filed an appeal with a certificate as required under Order 20, Rule 6-A, C.P.C. and the petitioner now wants to restore C.P. No. 515 of 1979 which was struck off earlier, to enable him to get a certified copy of the decree now, after a long lapse of time and to file it in the appeal now pending before this Court. I am afraid, that the Parliament when inserting Rule 6-A of Order 20, C.P.C. was not apprised of the fact that a partition decree is different from a decree of ordinary nature since the partition decree can be drafted only on non-judicial stamp papers to the value of the largest share claimed by the parties under Article 45 of the Indian Stamp Act. There can be no doubt that a final decree for partition passed by a Civil Court is an instrument of partition as defined in Clause 15 of Section 2 of the Stamp Act. It follows that such a decree can only be engrossed on stamp papers of sufficient value. It was held in Jotindra Mohan Tagore v. Bejoy Chand Mahatapa (1904) I.L.R. 32 Cal. 483, that a decree for partition to be operative must be engrossed on stamp paper, as required by the Stamp Act, and, until the Judge signs the decree so engrossed, it cannot be said that the suit has terminated. In Satyanandam v. Namayya A.I.R. 1938 Mad. 307. The above decision was followed by a Division Bench of this Court. The learned Judges in that case observed:
It is well stated that a final decree for partition has no existence as a decree until it is engrossed on the proper non-judicial stamp paper; till that is done, the suit is pending.
I do not think that the Parliament while introducing Rule 6-A in Order 20, C.P.C. has contemplated such a situation. Section 2(15) of the Indian Stamps Act reads as follows:
(15) Instrument of Partition: “Instrument of partition, means any instrument whereby co-owners of any property divide or agree to divide such property in serveralty and includes also a final order for effecting a partition passed by any Revenue Authority or any Civil Court and an award by an arbitrator directing a partition.
Article 45 in Schedule I of the Indian Stamps Act deals with the duty payable for partition deed and instrument of partition includes final decree in a partition suit passed by a Civil Court as found under Section 2(15) of the Indian Stamp Act. As held in the decision Satyanandam v. Namayya A.I.R. 1938 Mad. 307, a final decree for partition has no existence as a decree until it is engrossed on a proper non-judicial stamp paper, and till that is done, the suit will be considered as pending. In the decision Venkatappa v. Venkatappa A.I.R. 1943 Mad. 650 : I.L.R. 1944 Mad, 266, it is held that before a decree for partition could be executed, the holder must pay the stamp duty required by Article 45 of the Act and have the decree drawn upon non-judicial stamp paper. In The Chief Controling Revenue Authority v. Moideen Rowther (1955)2 M.L.J. 635 : I.L.R. 1956 Mad 132 : A.I.R. 1956 Mad. 207 : 1955 M.W.N. 990(F.B.), it is held that if the parties choose to take the risk and do not furnish stamp papers , the court has no power to draw up a decree on unstamped paper and sign it. Therefore, till the final decree is engrossed on proper non-judicial stamp paper, the final decree for partition has no existence at all and till that is done, the suit shall be considered pending. Therefore, in view of the decision in Satyanandam v. Namayya A.I.R. 1938 Mad. 307, there is no final decree at all in existence. In this case, I do not find that the first defendant has paid court-fee at all as required under Section 37(3) of the Court-Fees Act for his share.
20. Non-judicial Stamp papers were finally supplied on 5.2.1986 and the final decree was drafted on 24.2.1987. The copy application C.P. No. 515 of 1979 was presented on 24.1.1979. It was returned on 28.2.1979 by granting seven days time for furnishing general stamp papers for drafting final decree. The C.P. was not taken back and so it was struck off on 7.3.1979. The lower court directed the first defendant to furnish general stamp papers for drafting the decree. The lower court has not mentioned the value of the general stamps to be supplied by him. The plaintiff is liable to furnish non-judicial stamp papers for his share and the first defendant/petitioner herein also has to furnish non-judicial stamp papers for his share since the final decree is treated as a partition deed under Section 2(15) of the Indian Stamps Act. The first defendant is not liable to pay the entire non-judicial stamp papers. But the lower court has called for general stamps to be supplied for drafting the decree from the first defendant himself as per its order dated 28.2.1979 made in C.P. No. 515 of 1979. This order itself appears to be wrong on the face of the records when the first defendant himself is not liable to pay the entire stamp duty. Further, the quantum of general stamps to be paid by the first defendant was also not mentioned in the return in C.P. No. 515 of 1979. In view of the decisions referred to above, till the decree is drafted on a stamp paper, the suit is deemed to be pending. In the circumstances, the order of the lower court made on 7.3.1979 in C.P. No. 515 of 1979 appears to be wrong on the face of the records since the lower court should have called for general stamps even from the plaintiff for his share when the first defendant himself is not liable to pay the entire stamp duty. The plaintiff himself had supplied the entire stamp papers only in 1986. The first defendant/petitioner herein has not paid the court fee also as required under Section 37(3) of the Tamil Nadu Court-Fees Act and so he is also not eligible for getting a decree in the partition suit. With all these irregularities the lower court need not have struck off the copy application on 7.3.1979; but it should have directed the first defendant/petitioner to pay court fees towards his share first. In the absence of the stamp papers being furnished by the plaintiff himself for his half share, the lower court should not have called for general stamps from the first defendant himself and after collecting general stamps from the plaintiff also, it should have directed the first defendant to produce general stamps for his share. Admittedly, the plaintiff had not furnished the general stamps on 28.2.1979 or on 7.3.1979 when CP. No. 515 of 1979 was struck off. The first defendant should not have been directed to furnish general stamps for drafting the decree. This would unnecessarily saddle the first defendant/petitioner with liability of furnishing the entire stamp papers. The order of the lower court is wrong on the face of the records and the general maxim is that no party should suffer at the instance of the court and by applying this doctrine, the order of the lower court striking off the copy application is wrong. Bearing the above facts in mind, I find that the copy application is deemed to be pending in law since the order striking off on 7.3.1979 does not exist at all as that order is null and void.
21. In addition to that, I find that by mistake of the court in striking off the copy application much injustice appears to have been done to the first defendant. The lower court need not have struck off the copy application C.P. No. 515 of 1979 by granting seven days time only for compliance of furnishing general stamps and the lower court should have kept that application pending till the plaintiff also furnished general stamp for drafting the decree. Admittedly, the plaintiff has furnished the general stamps only on 5.2.1986 lastly.
22. In the result, I find that there is just and sufficient cause for condoning the delay in filing the application for restoring C.P. No. 515 of 1979. In the circumstances, the order of the lower court is not correct and proper and accordingly, I set aside the order of the lower court refusing to restore C.P. No. 515 of 1979 and I restore the copy application C.P. No. 515 of 1979 to file. C.R.P. No. 1038 of 1991 is allowed. The lower court is directed to furnish certified copy of the final decree after collecting the required non-judicial stamp papers from him or, if the plaintiff has already furnished the entire non-judicial stamp papers, then direct the first defendant to pay the value of the non-judicial stamp papers for his share to the plaintiff, or if the plaintiff refuses to receive the value, then direct the first defendant to deposit the value of the non-judicial stamp papers to the share of the first defendant into the lower court and issue certified copy of the decree within a period of two months from now.
23. With regard to C.R.P. Nos. 42 of 1990 and 610 of 1990,I do not interfere with the orders passed by the lower court and therefore, C.R.P. Nos. 42 of 1990 and 610 of 1990 are dismissed. There is no order as to costs in all the three C.R.Ps.
These petitions having been posted this day for being mentioned in the presence of the aforesaid Advocates, the court made the following Order : This matter having been listed today for being mentioned and on hearing both sides, the following order is made:
24. Mr. K.T. Palpandian, learned senior counsel appearing for the petitioners in all the civil revision petitions submits that there may be stay of execution proceedings in the suit for a period of four months to enable the petitioner to obtain a certified copy of the decree in the suit and also to seek further remedies. He also submits that in order to show his bona fide his client will deposit a sum of Rs. 25,000 towards the decree debt.
25. Learned Counsel for the respondents in all the three civil revision petitions objects to the prayer of the petitioner. His contention is that the stay granted by this Court on earlier occasion was vacated and the civil revision petition itself was dismissed. That order was passed possibly in a civil revision petition filed against execution.
26. In this matter, since the copy application was restored in order to enable the party to seek his remedy open to him in law, it is just and necessary that there should be stay so that the party aggrieved with the judgment of the lower court will seek further remedy open to him in law. In the circumstances, there will be stay of execution of decree for a period of three months and in the meantime, the petitioner is directed to deposit a sum of Rs. 25,000 before the expiry of three months from now.
27. Learned Counsel for the respondents seeks for stay of the operation of the order made in C.R.P. No. 1038 of 1991 so as to enable him to file an appeal. His prayer is refused.
28. The office will despatch copy of the orders made on 8.12.1992 and today (9.12.1992) to the lower court along with the records received from the lower court within a period of two weeks from now.