JUDGMENT
S.K. Jain, J.
1. Balbir Singh, Sukhdev Singh, Gurjant Singh, Sukhminder Singh, Besant Singh sons of Hazura Singh, Arjan Singh, Sar-wan Singh and Hazura Singh sons of Ram Singh filed Civil Suit No. 84 of 1960 for a decree of possession by way of partition of 5 bighas-5 biswas, 4 biswas of land comprised in khasra Nos. 2630/2501 (3-18B), 2476/1799(1-9), 2505/1749(2-19) 2628/2501 (1-15), Khatauni No. 250, Khewat No. 98, Khasra Nos. 2503/1749 (2-8), 2629/2501 (6-6) 1751/865 (1-3), 1753/865 (1-7), 1754/865 (1-7), 1754/865 (1-7), 1752/865 (1-7), 1750/865 (1-3), 2502/1755/1 (1-15), 2502/1755 (1-19), 2504/1779 (1-15), 2475/1749 (1-0), Khewat No. 98, Khatauni Nos. 253 to 260 as per jamabandi 1955-56 of Malout Mandi. The said suit was dismissed by Sub Judge 1st Class, Muktsar vide judgment and decree dated 16.1.1961. It was challenged by the plaintiff. The first appellate Court vide judgment and decree dated 30.4.1962 reversed the judgment and decree appealed against and a preliminary decree for partition of the land in dispute was passed. The defendants preferred regular second appeal in this court which was dismissed on 31.7.1964.
2. The plaintiff-decree holders applied for passing of a final decree. Arjan Singh decree holder died and his sons Rup Singh, Jagraj Singh, daughters namely, Bibbi Jeeta, and Bhagwan Kaur and widow Smt. Nand Kaur were brought on record. Sukhdev Singh plaintiff had also died. Her mother Sham Kaur was, there-fore, brought on record in his stead. Notice of the application was issued to the judgment-debtor, Sub Judge 1st Class, Muktsar, appointed Shri Dault Ram, Pleader, as a Local Commissioner, to effect the partition according to the terms . of the preliminary decree after ascertaining new khasra numbers vide his order dated 8.1.1968. Said Local Commissioner inspected the land in dispute a number of times after notifying the parties concerned and ultimately submitted his report dated 27.5.1968.
3. Judgment-debtors filed objections against the said report. During the pendency of those objections, some of the judgment-debtors had died. Six years were consumed in bringing their legal representatives on record. On 18.9.1964 it was stated on behalf of the decree holder that khasra No. 172 measuring 3 Kanal-out of Khasra No. 1773 over which the building of (sic) Rai vendee had been constructed be not given to the decree holders. Except for this land, the report of Local-Commissioner was accepted and the parties agreed to the final partition as Shri Ram Singh, Advocate made statement at the bar on behalf of the judgment-debtor represented by him that he was agreeable to the above said proposal. Other judgment-debtors were not present either in person or by through any authorized agent. They were, therefore, proceeded against ex parte. Sub Judge 1st Class, Muktsar vide his order dated 30.12.1974 after perusing the entire record and the report of the Local Commissioner, which had been accepted passed a final decree for (sic) possession of 8 Kanal-15-3/4 Maria of the land comprising khasra Nos.:-
1761(0-7), 1762(0-9), 1763(0-10), 1764(0) 1765(0-6), 1766(0-6), 1767(0-6), 1768(0-6), 1769(0-6) 1770(0-10), 1771(0-6), 1773(0-3), 1773(0-2) min, 1728(0-3/4), 1729(0-2), 1730(0-3), 173l(0-2), 1732(0-2), 1733(0-2), 1734(0-2), 1735(0-2), 1736(0-11), 1737(0-2), 1738(0-1), 1739(0-7) 1740(0-2), 1742(0-2), 1743(0-2), 1744(0-2), 1745(0-7), 1746(0-5), 1747(0-5), 1748(0-3), 1749(0-10), as per jamabandi 1965-66.
4. The decree holders sued out execution application on 3.3.1976. In this execution proceeding judgment-debtors raised objection that the decree was in executable because the same had not been engrossed on requisite stamp paper. The learned Executing Court vide order dated 15.11.1980 accepted the objection and held that the decree was in-executable, it having not been engrossed on a stamp paper. However, it was observed that the decree holders were at liberty to supply the requisite stamp paper and the decree would stand revalidated from the date it was passed. The plaintiffs were required to supply the stamp paper according to the market value of their separated share as on 30.12.1974. Thereupon the plaintiffs moved application No. 6-6A dated 173.1981 in the Court of Shri B.C. Rajput, Sub Judge 1st Class, Muktsar for assessing the market value of their separated share i.e. 8 Kanal-16 Maria as existed on 30.12.1974. A Local Commissioner was appointed who submitted his report vide which he assessed the market value of the said share of the plaintiffs at Rs. 3,38,000/-. objections were raised against the said report by judgment-debtors. Shri B.C. Rajput, Sub Judge 1st Class, Muktsar, in para No. 7 of his order dated 27.2.1982 found that since the plaintiffs themselves had supplied the stamp paper worth Rs. 6 lacs while assessing the market value of the property, therefore, the market value of the property in dispute was Rs. 6 lacs and the stamp paper supplied by the plaintiffs be used for the purpose of engrossing the decree.
5. In those proceedings it was argued that the application made for the purpose of drawing up the final decree was clearly barred by time and the Court was not legally competent to revalidate the decree from the retrospective date. It was further submitted that the decree should be prepared by following the rule of priority. The persons who purchased the property earlier cannot be made to suffer in comparison to the persons who purchased the property subsequently. Learned Subordinate Judge in his order dated 27.2.1982 has said that his previous order dated 15.11.1980 was not challenged and, therefore, had become final and binding on the parties. He directed that the decree be engrossed on the stamp paper.
6. Three appeals namely, Civil Appeal No. 293 of 1982/404 of 1983 Amar Singh and Ors. v. Balbir Singh and Ors.: Civil Appeal No. 281 of 1982/405 of 1983/251 of 1984 Nirmal Singh and Ors. v. Rajinder Singh and Ors. : and Civil Appeal No. 280 of 1982/406 of 1983/244 of 1984 Rajinder Singh and Ors. v. Gurjant Singh and Ors., were filed, Mr. J.S. Aggarwal, Additional District Judge, Faridkot, dismissed all of them by one single judgment dated 11.3.1985.
7. All the above mentioned five appeals are proposed to be disposed of by this single judgment as they are directed against the judgment and decree dated 11.3.1985 passed by Shri J.C. Aggarwal, Additional District’Judge, Faridkot.
8. I have heard the learned counsel for the parties and with their help have, gone through the voluminous record of the case.
9. Learned counsel for the appellants have argued that since plaintiffs Arjan Singh and Sukhdev Singh died, the final decree passed in favour of the dead persons was a nullity. Moreover, defendants No. 1, 3, 7, 8, 26, 28, 34, 44, 66, 72, 74, 98, 101, 102 and 111 had also died before the passing of the decree and, therefore, the said final decree was again a nullity. I do not -find any force in this argument of the learned counsel for the appellants. No evidence on record has been pointed out to the effect that the defendants had died before passing of the final decree. Legal representatives of Arjan Singh and Sukhdev Singh having been admittedly brought on the record, the first part of the argument pales into insignificance. Moreover, it being the partition suit, the death of one of the defendants during the pendency thereof was not fatal to the suit. Preliminary decree had preceded the final decree. Therefore, there can be no abatement of the suit. In holding this view I am supported by the ratio laid down in Raghunandan Sahu v. Badri Pandey, AIR 1945 Patna 380 wherein it was held that the provisions of abatement in Order 22 C.P.C. do not apply in case of death of a party after the passing of a preliminary decree in a partition suit, the rights of the parties having been determined by that decree.
10. The Second argument of the learned counsel for the appellants is that Surja Ram and Hardeva were dropped during the pendency of the suit, but their vendees were not impleaded and, therefore, the decree was bad for non-joinder of necessary parties. This argument also does not find favour with me because a transferee from a co-sharer in a partition suit is not a necessary party. Only co-sharers were the necessary parties and not their transferees. This view is supported by the ratio laid down in Sucha Singh and Ors. v. Nand Singh and Ors., 1980 Revenue Law Reporter 655.
11. It is then submitted that the property in dispute being evacuee property-civil Court had no jurisdiction in respect thereof and no decree could be passed as the land in dispute is vested in the custodian who was not a party to the suit. This argument also does not find favour with me. It is the matter preceding the passing of the preliminary decree which was passed on 30.4.1962. It was challenged up to this Court and was upheld. The preliminary decree operates as res judicata in the circumstances of this case.
12. It is next argued that Local Commissioner had not determined the market value of the separated share correctly inasmuch as mutation and musavi revealed that the market value was much more and in any case not less than Rs. 4,000/- per marla. Objections were filed against the report of the Local Commissioner but no opportunity was afforded to lead evidence, so the order dated 27.2.1982 was liable to be set aside. This argument is also devoid of force. It is not the case of the appellants that they had asked the Court that they should be afforded an opportunity to adduce evidence and that the Court had refused to oblige.
13. Be that as it may, the fact remains that the decree holders had themselves
ves fixed the market value of their share of the property at Rs. 6 lacs and-had filed the stamp paper in the Court accordingly. No fault can be found with the order dated 27.2.1982 fixing the market value of the property at Rs. 6 lacs which has been rightly affirmed by the learned 1st appellate Court.
14. Learned counsel for the appellant has then argued that the decree had been drawn on the basis of judgment dated 30.12.1974 and that too not on the requisite stamp paper. It was unenforceable. The limitation would start running against the judgment debtors w.e.f. 27.2.1982 when the decree was engrossed on the stamp paper and not from 30.12.1974, the date of judgment. The appeals before the District Judge were therefore, within limitation. In his support he has cited at the bar following judgments:
(i) Maksudan Prashed v. Lakshmi Devi and Ors., A.I.R. 1983 Patna 105.
(ii) Nrishingha Murari Datta v.Ajit Kumar Dutta and Ors., A.I.R. 1971 Cal. 213; and
(iii) Dilbagh Rai and Ors. v. Mt. Teka Devi, A.I.R. 1932 Lahore 249.
15. On the other hand, learned counsel for the respondents has submitted that order dated 27.2.1982 was passed in pursuance of the order dated 15.11.1980 which had become final and conclusive between the parties. So, the act of passing the said order dated 27.2.1982 was only a ministerial act of the Court. It was not appealable and only a revision lies against the same; and that the appeals before learned first appellate Court were barred by limitation.
16. I have given a thoughtful consideration to the rival arguments and examined the judgments cited at the bar. Vide order dated 15.11.1980, the decree holder was held to be at liberty to supply the stamp paper for the decree being engrossed upon it. In compliance of this order, the decree was ordered to be engrossed on the stamp paper supplied by the decree holders. It is not covered either under the provisions of Section 104 or under Order 43 Rule 1 C.P.C. and hence the same is not appealable. Again Order 43 Rule 1-A C.P.C provides:
“(1) that where any order is made under this Code against a party and thereupon any judgment is pronounced against such party and a decree is drawn up, such party may, in an appeal against the decree, contend that such order should not have been made and the judgment should not have been pronounced.”
Herein this case, the decree was passed on 30.12.1974 and vide impugned order dated 27.2.1982 the said decree was revalidated with effect from the date of the decree i.e. 30.12.1974 by engrossing on the requisite stamp paper supplied by the decree holders on the basis of the market value of their separated share. Simply because, the decree was not drawn on judicial stamp paper, it cannot be said that no decree existed on 30.12.1974. The preliminary decree had become final and conclusive between the parties. No appeal was filed within limitation against the final decree dated 30.12 1974. The appeal filed against the said decree which was revalidated with retrospective effect vide order dated 27.2.1982 is hopelessly time barred as under Article 116 of the Limitation Act, 1963, the appeals could be filed before the learned District Judge, within 30 days from the date of the decree or order. In view of the provisions of the Order 20, Rule 7 C.P.C. the date of decree is the date of passing of the judgment. Simply because, the decree is not engrossed on the stamp paper, it would not stop the running of the limitation against the judgment debtor. It is now well settled that preparation of decree subsequently was valid and executable. In holding the’above view, I am supported by the ratio laid down in:
(i) Nathu Ram and Ors. v. Madan Gopal and Ors., A.I.R. 1974 Punjab and Haryana 64, and
(ii) Gopimal v. Vidya Wanti, A.I.R. 1942 Lahore 260 (FB).
Now on to the judgments cited at the bar by the learned counsel for the appellants. They are of no avail to the appellants. In none of these cases decree had been prepared initially. It was prepared only when the decree-holder furnished the requisite stamp paper. After the decree was engrossed on the said stamp paper the execution was filed within three years and under those circumstances, it was held that the date of decree would be the date when the Court finally ordered to draw up the final decree. But in the case in hand, the decree was prepared initially on 30.12.1974 on the basis of the judgment of the same date. Execution was sued out on its basis. Objections were raised and thereupon it was held vide order dated 15.11.1980 that the decree was unenforceable but the decree-holder was at liberty to furnish the requisite stamp paper on which the decree will be engrossed and will stand revalidated. The decree-holder having filed requisite stamp paper, the decree was engrossed thereupon and stood revalidated retrospectively with effect from 30.12.1974. As mentioned herein before limitation of 30 days is provided for filing an appeal from the date of the decree. Otherwise also as mentioned earlier, under the provisions of Rule 7 of Order 20 C.P.C. the date of the decree is the date of passing the judgment. Merely because, the decree had to be engrossed on the stamp paper subsequently the running of the limitation would not be stopped.
17. In view of the above discussion, I do not find any fault with the impugned judgment dated 11.3.85 of the learned first appellate Court which is hereby affirmed.
18. Consequently the above said Regular Second Appeals are hereby dismissed. No order as to costs.