Obligation To Engross Decree On Stamp Paper Lies With Court Which Passed Final Decree: Kerala High Court

The Kerala High Court has held that the obligation to engross the final decree on stamp paper lies with the appellate court which passed the final decree.

A division bench comprising Justice Anil K Narendran and Justice PG Ajithkumar has held the decision in Brenda Barbara Francis v. Adrian Miranda 'Halcyon' Pakkattuvila, Kunnukuzhi (2016) to be per incuriam, observing that the obligation to engross the final decree on stamp paper is with the appellate court which passed the final decree.

The bench also noted that the appellate court shall retain the original final decree that is engrossed on the stamp paper which shall form part of the records and only copies shall be provided to the parties.

“The dictum laid down in Brenda Barbara Francis that the original of the final decree shall be given to such person on his making an application is in direct conflict with the provision of Rule 237 of the Civil Rules Practice” said the court.

In Brenda Barbara Francis's case, a division bench of the Kerala High Court had held that the power to engross a final decree on non-judicial stamp paper is with the trial court following the attainment of the finality of the decree.

It also stated that once the final decree is engrossed on stamp paper, the original shall be given to the person concerned on his application and the copy be kept with the case records. The bench took the view that the decree of the trial court merges with the appellate decree on a decree being passed by an appellate court, and it becomes the responsibility of the trial court to execute such a decree.

While pronouncing the decision, the court took note of the provisions of Civil Rules of Practice, 1971 (Kerala), the Kerala Stamp Act, 1958 and the Registration Act.

The court held that there cannot be any doubt that the decree can be drawn up only on the stamp paper when Rule 237(1) of the Civil Rules of Practice laid down that a decree in a partition suit shall be prepared on non-judicial stamp paper of requisite value and Rule 238 states the records of the case shall be consigned to the record room without drawing up the final decree if the parties fail to produce the amount required for the stamp paper.

The court also remarked that Rule 187 of the Civil Rules of Practice “insists that a final decree in a partition suit shall be prepared on stamp papers”.

The court looked into the provisions of Section 17 of the Kerala Stamp Act which requires all instruments executed in the state to be stamped to conclude that a final decree passed by a civil court amounts to an instrument of partition requiring stamp duty.

The court referred to Rules 36 and 37 of Order XLI of the Civil Procedure Code, 1908, which expresses that a decree of the Appellate Court shall be signed by the judge/judges who passed it, and the original of the Appellate Court decree shall be kept in the Appellate Court and a copy forwarded to the lower court whose decree was appealed.

Additionally, the court referred to the decision of the Supreme Court in Shankar Balwant Lokhande v. Chandrakant Shankar Lokhande (1995), to state that drawing up a final decree and engrossing it on stamp paper of required value together constitute the final decree having the effect of a duly stamped instrument.

“It cannot be said that engrossing a decree on stamp paper is an act independent of drawing up the decree. Once such a decree is drawn up, the court which passed the decree is obliged to send a copy of the same to the office of the Registrar concerned in compliance with the provisions of Section 89(5) of the Registration Act” concluded the court.

Case Citation: 2024 LiveLaw (Ker) 136

Case Number: IA No. 1/2023 in RFA No. 108 of 2003

Case Title: Meenakshi and ors. v. P Soman Nadar and ors.

Counsel for Petitioner: Advocates Sreelekha Puthalath and Panicker VPK

Counsel for Respondent: Advocates KM Firoz and M Shajna

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