Alfred Henry Lionel Leach, C J - (1.)On the 14 July, 1937, the appellant obtained a final decree in a suit filed by him in the Court of the Subordinate Judge of Guntur, for partition of the family properties. He now wants to execute that decree. The Subordinate Judge and the District Judge on first appeal have held that the decree has become time barred. This appeal is from the order passed by the District Judge.
(2.)Before a decree for partition can be executed the holder must pay the stamp duty required by Art. 45 of the Indian Stamp Act and have the decree drawn up on non-judicial stamp paper. Rule 12 of the rules relating to partition suits under the Civil P. C. and under the Partition Act, 1893, drawn up by this Court and to be found at page 263 of Vol. I of the Civil Rules of Practice and Circular Orders directs this to be done. Sub-rule (3) states that on the failure of the party in whose favour the order is made to produce the necessary non-judicial stamp paper within the time fixed or granted by the Court, the Court shall have the decree drawn up on unstamped paper and deal with it as an instrument within the operation of Chapter IV of the Indian Stamp Act and send the unstamped decree to the Collector for realization of the stamp duty under Section 48 of the Stamp Act and return of the decree duly stamped to the Court passing the decree with a certificate, by endorsement thereon that the proper stamp duty has been collected. The final decree in this case did not direct that the stamp paper should be produced within a specified time and apparently no action was taken under Sub-rule (3) of Rule 12. The amount of stamp required in this case was Rs. 327-7-0.
(3.)On the 3 March, 1938, the appellant applied to the Subordinate Judge for the execution of the decree. He had not produced the stamp paper and therefore he could only ask the Court to execute the copy of the decree drawn upon unstamped paper. Naturally the Court refused to accept the petition and on the 9 March, 1938, it was returned to the appellant for the payment of the required stamp duty within a period of seven days. The appellant did nothing until the 20 September, 1940, when he re-presented the same application again based on an unstamped copy of the decree. At the same time he asked the Court to excuse the delay in complying with the order passed on the 9 March, 1938. In his application for an order excusing the delay, he requested a week's time in which to pay the stamp duty. This application was rejected on the 27 September, 1940. On the 6 November, 1940, the appellant paid into Court the sum of Rs. 327-7-0. The money was received by the Court subject to the final order that might be passed on the petition for execution. On the 14th November, 1940, the petitioner filed a new application for execution. The respondents, the defendants in the suit, objected. They contended that the application was out of time. As we have already indicated, the objection was accepted by both the Subordinate Judge and the District Judge.