SUBIR CHATTERJEE Vs. SMT. S. CHHAYAJLANI
HIGH COURT OF CALCUTTA
Smt. S. Chhayajlani
Referred Judgements :-
BHOLANATH KARMAKAR V. MADAN MOHAN KARMAKAR AND OTHERS
JUGAL KISHORE V. RAW COTTON
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Bijitendra Mohan Mitra, J. -
(1.)The present revisional application is taken up for hearing on contest being directed against order No. 19 dated 29th March, 1995 passed by the learned Assistant District Judge, Fourth Court, Alipore in Misc. Case No. 25 of 1994. The said Misc. Case arises out of a proceeding under Sec. 47 of the Civil Procedure Code. The first point that has been attempted to be canvassed is as to the locus standi of the person namely, Subir Chatterjee as it has been alleged that he does not figure as a party in the decree itself and as such he has no locus standi to maintain the application under Sec. 47 of the Civil Procedure Code. Mr. Chatterjee appearing on behalf of the petitioner has referred to the materials in order to drive home his point that the learned court below is in confusion about the identity of the person because his name is Subir Chatterjee alias Swapan Chatterjee. The said contention of Mr. Chatterjee has been conceded to by Mr. Roychowdhury appearing on behalf of the opposite party and as such the Court need not require to be detained at this juncture and the confusion seems to have been clarified as Subir Chatterjee appears to be the same person as Swapan Chatterjee.
(2.)The other points which look large in the vortex of the controversy and one of such point is the point of limitation. In the context the controversy seems to have been further focused as to what should be the date of the decree. Here in the impugned order the court holds that unless the stamp duty is paid, no final decree can be drawn up and the date of drawing up of the final decree should be taken to be the date when the decree is capable of being formally drawn up. Mr. Roychowdhury appearing on behalf of the opposite party has referred to a Special Bench decision in the case of Bholanath Karmakar and others Vs. Madanmohan Karmakar and others, reported in AIR 1988 Calcutta 1 where the Special Bench has propounded the ratio of law which can be quoted hereunder. According to the Special Bench:-
"The terminus a quo for the period of limitation under Art. 136 of the Limitation Act 'is when the decree becomes enforceable'. A decree for partition is also an "instrument of partition as defined in Sec. 2(15) of the Stamp Act and is chargeable with stamp duty thereunder. Under Sec. 35 of the Stamp Act, such a decree for partition cannot be admitted in evidence and cannot in any way be acted upon by or in any Court unless the same is duly stamped and, therefore, does not become enforceable until engrossed on stamp papers."
(3.)Therefore, the basic premise on which the learned trial Court proceeds on interpretation about the date of the final decree seems to be supported by the ratio of law as expounded in the Special Bench decision (supra).
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