1 mp t IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4194 of 2006 Bal Krishna Bapu Sawant .. Petitioner versus Ranjana Shankar Sawant .. Respondent ... Mr.Umesh Mankapure for the petitioner. Mr.Shrishil Sakhare for the respondent. CORAM : A.M.KHANWILKAR, J DATED : 25th August 2008 P.C.: 1. Heard counsel for the parties. 2. According to the petitioner, no execution proceedings could have continued in absence of a final decree and more so, engrossment of the said final decree of stamp papers. For that, reliance is placed on the decision of the Apex Court in Shankar Balwant Lokhande (Dead) by LRs Vs. Chandrakant 2 Shankar Lokhande & Anr. reported in (1995) 3 Supreme Court Cases 413. There is no difficulty in accepting this proposition canvassed by the petitioner. However, in the present case, I find that final decree has already been passed which has been affirmed by the appellate court. By a separate order, I have rejected the Second Appeal filed by the petitioner against the said final decree today itself. In other words, the existence of final decree cannot be disputed. 3. To get over this position, counsel for the petitioner contended that the said decree is not engrossed in accordance with the requirements of Article 46 of Schedule of the Bombay Stamp Act 1958. Article 46 of the said Act reads thus:- Partition - Instrument of .. .. (Rupees Ten for every rupees five hundred or part thereof of the amount or the market value of the separated share or shares of the property. Note : The largest share remaining after the property is partitioned (or, if there are two or more shares of equal value and not smaller than any of the other shares, then one of such equal shares) shall be deemed to be that from which the other shares are separated. Provided always that - 3 (a) when an instrument of partition containing an agreement to divide property in severalty is executed and a partition is effected in pursuance of such agreement, the duty chargeable upon the instrument effecting such partition shall be reduced by the amount of duty paid in respect of the first instrument, but shall not be less than five rupees; (b) where the instrument relates to the partition of agricultural land, the rate of duty applicable (shall be one hundred rupees) (c) where a final order for effecting a partition passed by any Revenue Authority or any Civil Court or an award by an arbitrator directing a partition, is stamped with the stamp required for an instrument of partition, and an instrument of partition in pursuance of such order or award is subsequently executed, the duty on such instrument shall not exceed ten rupees. 3. Reliance is placed on the first paragraph of Article 46, to contend that the market value of the property will have to be determined as on the date of the decree. The fallacy in this argument is that the valuation envisaged by Article 46 referred to above is not in the context of market value of the date of the decree but will have to be on the market value of the separated share as on the date of the institution of the suit i.e. 25th August 1988. The fact that decree has been passed much thereafter cannot be the basis to 4 take the view that the decree holder would be required to submit stamp papers commensurate with the market value of the separated share on the date of the decree. The decree relates back to the date of institution of the suit. As has been rightly found by the court below, the suit was filed on 25th August 1988 and the market value of the suit property separated share of the decree holder was only Rs.5,000/- (Rupees Five thousand only) at the relevant time. There is no material placed on record to indicate that the market value of the separated share of the decree holder was anything but the market value of Rs.5,000/- as recorded by the court below. Once that finding of fact is to be accepted and the principle as noted earlier to be applied, it necessarily follows that the decree holder was expected to pay stamp duty on market value of separated share of Rs.5,000/- which amount would be only Rs.100/-. However, the decree holder has already paid court fee at the time of filing of the suit in the sum of Rs.350/-. 4. Counsel for the petitioner fairly accepts that the decree holder would be entitled for adjustment of the court fee amount. If so, the decree holder has paid excessive amount as court fee, then the amount of stamp duty to be paid on the decree for the purpose of engrossment thereof. 5 5. Counsel for the petitioner would then contend that the decree holder has paid deficit stamp paper of only Rs.20/- for the purpose of drawing of the final decree. However, in my opinion, no fault can be found with the view taken by the court below that the said payment satisfies the requirement of Article 46 including clause(c) thereof. Hence, no case for interference in exercise of writ jurisdiction under Article 227 of the Constitution of India is made out. Hence, dismissed. (A.M.KHANWILKAR, J)