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On the other hand, the learned counsel appearing for the respondents supporting the impugned judgment strongly relies on the decisions in Lokhande and W.B.Essential Commodities Supply Corporation cases in support of the contention that a final decree of partition becomes enforceable only when it is engrossed on the stamp paper.

In Lokhande's case, a preliminary decree was passed on 2nd August, 1955 in a suit for partition declaring the share of each of the parties to the suit. The Court by its order dated 19th April 1958 directed preparation of final decree on the supply of the stamp papers. On 19th December, 1960 one among the several parties to the suit whose shares had been declared in the preliminary decree, supplied the stamp paper for engrossing the final decree to the extent of his share declared in the preliminary decree and accordingly on 11th January, 1961 a final decree was engrossed on the stamp paper to the extent of his share. Other parties to the suit whose shares were declared in the preliminary decree did not supply the stamp papers, hence no final decree was made qua them. However, they filed application for execution of the preliminary decree, which was dismissed as barred by limitation. The High Court while dismissing the appeal held that in view of the fact that no final decree was drawn on stamp paper there was no decree in existence for its execution. In this background it was found that no executable final decree has been drawn working out the rights of the parties dividing the properties in terms of the shares declared in the preliminary decree. Since the final decree had not been drawn, the observations regarding furnishing of stamp paper and engrossment of the final decree thereupon were not germane to the issue involved in the said case. Thus, the said observations are clearly obiter dicta.

Therefore, Lokhande's case cannot be said to have laid down the proposition that the period of limitation would commence only on engrossment of final decree of partition on stamp paper. In W.B.Essential Commodities Supply Corporation's case, the High Court decreed the suit filed for recovery of money on 8th March, 1982. However, the decree was actually drawn up and signed by the judge on 9th August, 1983. Application for execution of decree was filed by the decree holder on 5th June, 1995. The executing court ordered execution of the decree. But, on appeal, the Division Bench of the High Court set aside the order and held that the execution petition was barred by limitation under Article 136 of the Act. The question before this Court was whether the period of limitation begins to run from the date the suit is decreed or from the date when the decree is actually drawn up and signed by the judge. The Court held that a decree is said to be enforceable when it is executable. For a decree to be executable, it must be in existence. A decree would be deemed to come into existence immediately on the pronouncement of the judgment and the decree becomes enforceable the moment the judgment is delivered and merely because there will be delay in drawing up of the decree, it cannot be said that the decree is not enforceable till it is prepared because an enforceable decree in one form or the other is available to a decree holder from the date of the judgment till the expiry of the period of limitation under Article 136 of the Act. In arriving at the abovenoted conclusion, the Court placed reliance on Order 20 Rule 6A of Civil Procedure Code which provided that the last paragraph of the judgment should state in precise terms the relief which has been granted by such judgment. It fixed the outer time limit of 15 days from the date of the pronouncement of the judgment within which the decree must be drawn up. In the event of the decree not so drawn up, clause (a) of sub-rule (2) of Rule 6-A enabled a party to make an appeal under Rule 1 of Order 41 CPC without filing a copy of the decree appealed against and for that purpose the last paragraph of the judgment shall be treated as a decree. For the purpose of execution also, provision is made in clause (b) of the said sub-rule which says that so long as the decree is not drawn up, the last paragraph of the judgment shall be deemed to be a decree. Clause (b) has thus enabled the party interested in executing the decree before it is drawn up to apply for a copy of the last paragraph only, without being required to apply for a copy of the whole of the judgment. After holding that decree becomes enforceable the moment the judgment is delivered, which ultimately decided the question that arose for consideration in the case, the Court went further and observed that there may, however, be situations in which a decree may not be enforceable on the date it is passed. The Court gave three situations by way of illustrations to demonstrate when a decree may not be enforceable on the date it is passed. The third illustration is more pertinent to the present discussion, which is as follows:

"Thirdly, in a suit for partition of immovable properties after passing of preliminary decree when, in final decree proceedings, an order is passed by the court declaring the rights of the parties in the suit properties, it is not executable till final decree is engrossed on non-judicial stamp paper supplied by the parties within the time specified by the court and the same is signed by the Judge and sealed. It is in this context that the observations of this Court in Shankar Balwant Lokhande v. Chandrakant Shankar Lokhande [(1995) 3 SCC 413] have to be understood. These observations do not apply to a money decree and, therefore, the appellant can derive no benefit from them."

The reference order mentions that the decision of a two Judge Bench of this Court in Renu Devi v. Mahendra Singh & Ors. [AIR 2003 SC 1608] would have some bearing. In that case in a suit for partition a compromise decree was made on 13th February, 1978 declaring the share of the parties in the suit property. The final decree was engrossed on the stamp paper on 24th May, 1979. Two parties to the decree gifted the property that fell into their share by a gift deed. Title to these gifted properties was challenged in the title suit. The Trial Court dismissed the suit. On appeal, the First Appellate Court allowed the appeal. On further appeal, the High Court while allowing the appeal held that donors acquired their separate title in the joint property only after the final decree was engrossed on the stamp paper i.e. on 24th May, 1979 and, therefore, they were legally incompetent to gift their property so as to transfer the title to the donees inasmuch as before the decree was engrossed on the stamp paper they did not have any title in the property.