- (1.) THE present petition has been filed by the petitioner-judgment debtor under Section 115 of CPC challenging the order dated 7.11.2012 passed by the Civil Judge (JD) Deoli, District Tonk (hereinafter referred to as the "executing court "), whereby the executing court has dismissed the application of the petitioner filed under section 47 read with section 151 of CPC in Civil Misc. Execution Application No.6/2010.
(2.) IN the instant case, there are certain undisputed facts. It is not disputed that the respondent no.1-plaintiff-decree holder filed the suit against the petitioner and the respondent no.2-defendants-judgments debtors seeking her 1/3rd share in the suit properties. The defendants had not contested the suit and an ex-parte decree dated 24.2.2009 came to be passed by the Civil Judge(JD) Deoli, District-Tonk (hereinafter referred to as "the trial court ") in Civil Suit No.5/2005 It appears that the said decree was challenged by the petitioner under Order IX Rule 13 of CPC by filing an application, however, the same was dismissed by the court and against the said order, appeal was also dismissed. Therefore, the decree dated 24.2.2009 attained the finality. The said decree being preliminary decree, the final decree came to be passed by the court on 19.5.2010. It appears that the said final decree was also not challenged by the petitioner and the same attained the finality. The respondent No.1-decree holder having filed the execution petition being No.6/2010 for the execution of the said decree, the petitioner filed an objection application under Section 47 read with section 151 of CPC raising objection against the exeuction of the said decree on the ground that the respondent no.1 having not paid the requisite stamp duty on the final decree, which was an instrument of partition, the same cannot be executed. The said application was dismissed by the executing court vide the impugned order dated 7.11.2012.
(3.) IT has been sought to be submitted by learned counsel Mr. GP Sharma for the petitioner that the final decree of the court being an instrument of partition within the meaning of section 2 (XX) of Rajasthan Stamp Act (hereinafter referred to as "the said Act "), the same is chargeable to duty under the said Act and unless the requisite stamp duty is paid up by the respondent no.1 towards her 1/3rd share in the suit properties as per the decree, the said decree could not be acted upon or executed in view of section 39 of the said Act. According to him, the executing court has failed to appreciate the said provisions and wrongly dismissed his application. The learned Sr. counsel Mr. RK Agarwal for the respondent no.1, while not disputing the legal position that the final decree of partition passed by the trial court would be an instrument of partition liable for the payment of stamp duty, he has submitted that there was no direction by the trial court or executing court for the payment of stamp duty as required under the said Act. He submitted that the respondent No.1 is ready and willing to pay the requisite stamp duty if directed by the court.;