TaxTMI 
TaxTMI 
1987 (10) TMI 372
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....barred by time and the revision must fail. If on the other hand such a decree does not become enforceable until the same is engrossed on requisite stamp papers, as urged by the petitioners, the impugned order holding the execution to be time barred was wrong and the revision must succeed. 2. We have heard for days together learned arguments advanced by Mr. S. P. Roy Choudhury for the petitioners and by Mr. Ashok Chakraborty for the opposite parties and we are satisfied that whatever might have been the position under Article 182 of the preceding Limitation Act of 1908, the question should not, in view of the expression used in Article 136 of the present Act of 1963, present any difficulty any more. 3. As already noted, the terminus a quo for the period of limitation under Article 136 of the Limitation Act "is when the decree becomes enforceable." A decree for partition is also an "instrument of partition" as defined in Section 2(15) of the Stamp Act, 1899 and is chargeable with stamp duty thereunder. Under Section 35 of the Stamp Act, such a decree for partition cannot be admitted in evidence and cannot in any way be acted upon by or in any Court unless the sa....
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....asis of the last paragraph of the judgment indicating the reliefs granted, even before any decree has been drawn up all decrees, including a decree for partition, become executable, and thus enforceable, even before they are formally drawn up and, therefore, the holders of all decrees, including a decree for partition, being thus entitled to apply for execution even before the decrees are formally drawn up, the period of limitation shall run from the date of such executability or enforceability. It is true that Rule 6A provides that "the last paragraph of the judgment shall state in precise terms the relief which has been granted by such judgment" and that "so long as the decree is not drawn up, the last paragraph of the judgment shall be deemed to be the decree for the purpose of execution and the party interested shall be entitled to apply for a copy of that paragraph only...". Ordinarily, a decree is made or passed immediately a judgment is pronounced even though a decree in proper form is formally drawn up later and that is why Order 20 Rule 7 of the Civil P.C. provides that the decree, whenever drawn up, shall bear the date on which the judgment is pronounc....
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....pared under the law. Time was given to the plaintiff for that purpose and there could be no decree in existence in law until the plaintiff supplied the court-fees". 7. That was a case where a final decree in a suit for rendition of accounts was granted and the plaintiff was directed to make up the deficient court-fees within one month. If under those circumstances, the Supreme Court has observed that "there could be no decree in existence in law" until the court-fees were put in, then a fortiori, a decree for partition, which is always to be conditioned by the requirement of putting in the requisite stamps by the parties and which cannot, in view of Section 35 of the Stamp Act, be in any way acted upon without such stamps, cannot come "in existence in law" until such stamps are furnished and, therefore, cannot, until then, obviously become enforceable within the meaning of Article 136 of the Limitation Act. 8. Mr. Chakraborty, has however, drawn our attention to an earlier decision of the Supreme Court in Yeshwant Deorao v. Walchand Ramchand, , which also arose out of a suit for the dissolution of partnership and the taking of accounts and where also the ....
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....onsistencies are not to be readily assumed as they very often be not real but only apparent resulting from the application of the very same principle to different sets of facts -- "Prayoge Hi Virodha Syat". But when such contrary decisions of co-ordinate Benches cannot be reconciled or explained in the manner as aforesaid, the question would arise as to which one the High Court is obliged to follow. 11. One view is that in such a case the High Court has no option in the matter and it is not for the High Court to decide which one it would follow but it must follow the later one. According to this view, as in the case of two contrary orders issued by the same authority, the later would supersede the former and would bind the subordinate and as in the case of two contrary legislations by the same Legislature, the later would be the governing one, so also in the case of two contrary decisions of the Supreme Court rendered by Benches of equal strength the later would rule and shall be deemed to have overruled the former. P. B. Mukharji, J. (as his Lordship then was) in his separate, though concurring, judgment in the Special Bench decision of this Court in Pramatha Nath v. Ch....
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....; and that "in such circumstances the correct thing is to follow that judgment which appears to the Court to state the law accurately or more accurately than the other conflicting judgment". 14. I had also occasion to consider this question in Gopal Chandra Kalay v. State, 1981 Lab IC 422 at Pp. 423, 425 (Sikkim) and the Union of India v. Ashok, AIR 1983 Sikkim 19 at Pp. 23, 25, 26 where, for the reasons stated therein, I accepted this view and agreed respectfully with the views of Sandhawalia, C. J. in the Punjab Full Bench decision in Indo-Swiss Time, (supra) and the minority view of Jagannatha Shetty, J., in the Karnataka Full Bench decision in Govinda Naik, (supra). I held that where there are contrary decisions of the Supreme Court rendered by Benches of equal strength, the High Court, in theory, being bound by each one, is, in effect, bound by none and is not necessarily obliged to follow the later in point of time, but may follow the one which, according to it, is better in point of law. 15. It appears that the Full Bench decision of the Madras High Court in R. Rama Subbarayalu v. Rengammal, , would also support this later view where it has been observed (at p. 4....
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....earlier and would be the binding law. But we do not think that this legislative analogy would at all be apposite and can help us in solving the question before us because the very same Legislature can always repeal or alter its own law, even impliedly, while overruling being an act of superior jurisdiction, one Bench cannot overrule, expressly or by implication, a decision of a co-equal Bench. It is also true that the view that when there are conflicting decisions rendered by co-ordinate authorities, the later decision would govern us, would be conducive to certainty in the field of law. But the same certainty would also be achieved if it is also ruled that the later Bench being not competent to overrule the earlier decision of a co-ordinate Bench, the earlier decision would still continue to be the good law. A similar view in favour of the earlier decision was in fact taken by a Division Bench of this Court in Bagala Sundari v. Prosanna Nath, 21 Cal WN 375 at p. 377 : (AIR 1917 Cal 668 at p. 669) where it was held that even though there might be later decisions not easy to reconcile, since the earlier one was not or could not be overruled, it would be binding, "that being a d....
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....Art 136 of the Limitation Act, 1963 until engrossed on the requisite stamp papers and the period of limitation, therefore, cannot begin to run until such stamp papers are furnished. 20. As already noted, the terminus a quo for the period of limitation for the execution of decrees under Article 182 of the earlier Limitation Act of 1908 was "the date of the decree" and as under the provisions of Order 20, Rule 7 of the Civil P.C. the decree shall bear the date on which the judgment is pronounced, it was held in a catena of decisions, including that of the Division Bench of this Court in Kishori Mohan v. Provash Chandra, AIR 1924 Cal 351, that even for the execution of a partition decree, the time would run from the date of the judgment, even though such a decree is in fact drawn up and engrossed on stamp papers much later. These being decisions under Article 182 of the earlier Limitation Act of 1908 where, as already noted, the starting point of limitation was very much different from that under Article 136 of the present Act, it is not at all necessary for us now to decide in this case as to whether those cases were correctly decided. But we would only note that if a decr....