The High Court dismissed the writ petition under Article 227 challenging an order in a partition suit, holding the petition was not maintainable as the final decree was appealable under the Code of Civil Procedure.
The writ petition is dismissed on the ground of availability of a remedy of appeal under the statute.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(C) No.2684 of 2019
Nimai Mahato, aged about 48 years, son of Late Harijan Mahto, resident of Phulghar, Barwatand, P.S.-Tundi, P.O.-Maharajganj, District-Dhanbad.
…… Respondents -------
CORAM: HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD
------For the Petitioner : Mr. Jitendra Kumar Pasari, Advocate For the Respondents : None ----------------------------
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04 / Dated 19th July, 2019
In that view of the matter since the proceeding of final decree has already been disposed of and the matter has been posted only for preparation of final decree after depositing the court fee, it is the settled position that a decree in a suit for partition declares the rights of the parties in the immovable properties and divides the shares by metes and bounds. Since a decree in a suit for partition creates the rights and liabilities of the parties with respect to the immovable properties, it is considered as an instrument liable for the payment of stamp duty under the Indian Stamp Act. The object of the Stamp Act being securing the revenue for the State, the scheme of the Stamp Act provides that a decree of partition not duly stamped can be impounded and once the requisite stamp duty along with the penalty, if any, is paid the decree can be acted upon.
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the domain, purview and control of a party.
(Sujit Narayan Prasad, J.)
Saurabh
3 issues framed by the court
Whether a writ petition filed under Article 227 of the Constitution is maintainable to challenge an order relating to a final decree in a partition suit.
Whether a final decree in a partition suit is appealable.
Whether the availability of a statutory remedy bars the exercise of High Court's writ jurisdiction under Article 227.
3 provisions across 3 enactments
Nimai Mahato
Jagarnath Mahato
Agnu Mahato
Tulsi Mahto
Bhusan Mahato
Harakhlal Mahato
Sujit Narayan Prasad
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
