- (1.) This application is directed against the Order No.79 dated March 17, 2010 passed by the learned Civil Judge (Senior Division), Arambagh in Misc. Execution Case No.3 of 2002 thereby rejecting an application dated January 14, 2010 filed by the decree-holder.
(2.) The petitioner obtained an award on partition of family properties by way of an arbitration award dated December 26, 2000 against the opposite parties. For execution of the said award, the petitioner filed an application for execution and the said application has been numbered into Misc. Execution Case No. 3 of 2002. THE award is to be passed on a Stamp Paper of Rs. 150/- at the time of passing the award in the year 2000. When the matter was detected, the petitioner deposited Rs.150/- as Stamp Duty by filing the non-judicial stamp. Subsequently, the learned Executing Court directed that the said, award was to be impounded. Accordingly, impounding was made and the petitioner paid a sum of Rs. 1,500/- as penalty. THEreafter, the judgment debtors/opposite parties appeared and the learned Trial Judge directed the Collector to assess the market value of the properties. Accordingly, the valuation was assessed to the extent of Rs.23,44,800/-. Subsequently, the Court again asked for report and the said valuation was changed to Rs.47,30,480/-. THE Executing Court has asked the Collector to determine the Stamp Duty to be payable and the amount, that is, required as penalty for impounding the document. THE Collector did not send any report. THEreafter, the petitioner filed the said application for not calling for the report and that application was rejected by the impugned order. Being aggrieved, this application has been preferred. Now, the question is whether the impugned order should be sustained. Upon hearing the learned Counsel for the parties and on going through the materials-on-record, I find that the application for execution was filed in the year 2002 and since then, it is still pending on the ground that the Collector did not send the report as to the quantum of Stamp Duty and the penalty to be paid for impounding over the valuation of the suit properties. In this regard, the learned Executing Court, I hold, is proceeding on a wrong way. The Executing Court is to effect partition of the suit property as per award dated December 26, 2000. When it was noticed that the said award was without any Stamp Duty as per direction of the Court, the decree-holder paid the Stamp Duty on the award under Section 33 of the Indian Stamp Act, 1899. Subsequently, the learned Executing Court held that the said award was to be impounded. Accordingly, the decree-holder deposited Rs.1,500/- as penalty for impounding the award in compliance of the provisions of Section 33 of the Indian Stamp Act, 1899. Therefore, so far as the part for impounding the document for taking the same into consideration by the learned Court is concerned, I find that the Stamp Duty and the penalty on the award had been paid. Now, the said award is to be executed through the concerned Court and the matter is pending for that purpose.
(3.) By an order dated July 11, 2005, the Executing Court asked for a report from the Collector for determination of the valuation of the properties of the award. Accordingly, the Collector sent the report over the valuation of the properties involved in the execution to the extent of Rs.23,44,800/- by a forwarding letter dated January 6, 2006 of the Block Development Officer, Arambagh Development Block, Hooghly. Thus, I find that the valuation of the properties mentioned in the award had been assessed to the tune of Rs. 23, 44, 800/-. The decree-holder is required to pay the Stamp Duty over this amount and not to pay any penalty. The determination of the Stamp Duty could well be done according to the Schedule of the concerned Act and for that reason, the matter need not be sent to the Collector. But it is surprising to note that by an order dated May 3, 2007, the matter was referred to the Collector again for determination of the valuation of the properties mentioned in the award and the Collector assessed the valuation to the tune of Rs.47,30,480/-. Had the petitioner paid the Stamp Duty over the said amount of Rs.23,44,800/-, the question of sending the matter for determination of valuation to the Collector again would not have arisen. If the report as to valuation is called again now, then certainly the valuation of the property would be more than Rs.47 lakh and odd and so, this process as adopted by the Executing Court cannot be accepted.;