Andhra HC (Pre-Telangana)
Baparowthu Nookamba vs Baparowthu Durgamba And Ors. on 14 August, 1995
Equivalent citations: 1995(3)ALT908
Author: B. Subhashan Reddy
Bench: B. Subhashan Reddy
ORDER B. Subhashan Reddy, J.
1. This revision petition arises against the Order dated 7-6-1995 passed in I.A.S.R. No. 525 of 1995 in O.S. No. 29 of 1985 on the file of the Court of the Subordinate Judge, Amalapuram.
2. The said Suit was filed for partition and after a long drawn battle, the parties entered into compromise by excluding some properties from partition. A memo was filed before the trial Court, which was accompanied by the terms of compromise, for recording compromise and to pass a preliminary decree in terms thereof. The lower Court recorded the compromise. However, the Office of the Subordinate Judge, Amalapuram called for deposit of non-judicial stamps for engrossing the decree. Then the above I.A.S.R. was filed stating that what was sought to be passed was only a preliminary decree and not a final decree; as such, the question of payment of either Court fee or deposit of non- judicial stamps does not arise. But, the Court below did not accede to the said contention and rejected the said application; against which, this revision is preferred.
3. Mr. V.L.N. Gopala Krishna Murthy, the learned Counsel for the petitioner, submits that in a preliminary decree, the insistence of the Court below for payment of Court fee or deposit of non-judicial stamps was unwarranted and that the lower Court had exceeded its jurisdiction. He also submits that when the compromise was entered into and a petition was filed, the Court was only enjoined to verify as to whether or not the compromise was entered into voluntarily and whether or not the parties thereto know the contents of the terms of the compromise and as the compromise related to only passing of the preliminary decree, the question of payment of either the Court fee or deposit of non-judicial stamps does not arise at all.
4. In normal circumstances, I would have admitted the revision petition and issued notices to the respondents. But, for the reason that the respondents are not the affected parties as they had already compromised and the question relates only to the legal contentions, I do not feel it necessary to issue notices to the respondents and as such, considered the arguments of Mr. V.L.N. Gopala Krishna Murthy, the learned Counsel for the petitioner.
5. It is pertinent to mention that in a suit for partition, it is not necessary that, at the first stage, a preliminary decree be passed and then only resort to passing of the final decree. Where parties agree in a compromise, the Court can not only specify their shares, but also specify the properties as having fallen to their shares. In the event there is a preliminary decree and also embodied therein a final decree, then for engrossing the same, deposit of non-judidal stamps is necessary. Question of payment of Court fee arises only when mesne profits are sought for, be it past or future. But, in the instant case, the past profits have been waived. If the parties seek for future profits, the Court fee is payable and decree will not be drafted unless the Court fee is paid after determination of such mesne profits, should they be sought for. But, in so far as deposit of non-judicial stamps is concerned, for passing a preliminary decree, deposit of the same cannot arise at all. Mr. Murthy, the learned Counsel for the petitioner, has placed before me the terms of compromise, from which it is clear that for the items of properties compromised, shares of the parties were specified as 1/6th each. There is no recital to the effect that a particular property has fallen or allotted to the share of the party/s towards his/their 1/6th share. As such, it is so dear that the Memo of compromise seeks to pass a preliminary decree that the parties are entitled to 1/6th share each and the property conforming to the said 1/6th share each, has to be identified after enquiry, necessarily by following the procedure contemplated under Order XX Rule 18 C.P.C. and for passing a final decree thereto. As such, at this stage of passing a preliminary decree basing on the compromise, no deposit of non-judidal stamps can be ordered. As such, I direct the Court below to pass a preliminary decree in terms of the Memo of compromise after satisfying that the same was entered into voluntarily and by examining the parties thereto. Insistence for deposit of non-judicial stamps can be made only when Order XX Rule 18 C.P.C. proceedings are conduded and for passing a final decree thereto. It is needless to mention that after such determination of the proceedings for passing final decree, if the non-judicial stamps are not deposited, the lower Court has to decline to grant such a final decree. It is also made clear that if the parties seek for determination and payment of future profits, the said decree shall not be drafted unless the Court fee on the amount determined is deposited.
6. Accordingly, the Civil Revision Petition is disposed of at the stage of admission. No order as to costs.