SHAHID WAHEED,J. The question in this petition is whether a court can stop preparation of a final decree, in a suit for partition, pending payment of stamp paper and taxes, etc. This question arises from the judgment dated 23.07.2014 passed by the learned Civil Judge, Ist Class, Lahore in a suit instituted by the predecessor of respondents No.1 (i) to 1 (iii), that is, Aman Ullah Khan Bangsh for possession of the suit property through partition. The said suit was decreed by the learned Trial Court vide final judgment dated 23.07.2014 in following terms: "It is also relevant to mention here the said local commission was appointed with the consent of the parties. The original report of local commission which is now marked as Ex.P-A is available on file, the report is comprehensive. It is also reveals that the parties with mutual consent has already partitioned the suit property by raising a wall, however some share/part of property not in possession of the judgment debtor, on which decree holder still in possession. The report of local commission Ex.P-A along with site plan regarding shares and ownership of the parties is made part and parcel of the final decree of the court. Parties are required to submit requisite stamp paper.
Decree sheet be issued subject to payment of stamp paper and taxes under the relevant provision of law. Final decree sheet be prepared accordingly. File be consigned to the record room after its due completion."
Pursuant to said judgment the decree was not drawn by the learned Trial Court for non-submission of requisite stamp papers. The petitioners wanted to assail judgment dated 12.10.2013 but they could not do so due to non-preparation of decree sheet. This led the petitioners filing an application under sections (2), 33, 151 and Order XX Rules 1 to 6 C.P.C. Before the Trial Court for drawing up the decree sheet. This application was dismissed vide order dated 28.02.2015 by the learned Civil Judge, Ist Class, Lahore in following terms: "As the judgment and decree dated 23.07.2014 was passed in pursuance of mutual consent of the parties, moreover, the parties also did not raise objection qua the report of local commission. Since the judgment and decree dated 23.07.2014 is outcome of the mutual consent of the parties and applicant interestingly has not pointed out that same was not outcome of mutual consent meaning thereby mutual consent holds-field. Moreover the applicant has also failed to justify why he is absolved from the payment of stamp duty etc. To the extent of share given to him. With these observations, instant application is accordingly disposed of, however, applicant is directed to provide requisite stamp duty commensurable to his respective share as directed vide order dated 23.07.2014. This order be attached with main case-file.
2. The petitioners, feeling aggrieved, filed a petition under section 115 CPC before the learned Additional District Judge, Lahore, and sought revision of the order dated 28.02.2015. The learned Additional District Judge dismissed the revision petition vide judgment dated 03.08.2015.
Penultimate paragraph of the said judgment reads as under: "Admittedly the petitioner has not so far submitted the requisite stamp duty as directed by the learned trial court. The suit filed by -15 the respondent No.1 was a suit for partition of immovable property. It is well settled law that in a suit for partition of immovable property the final decree is to be stamped as an instrument of partition u/s 2 (15) and article 45 of the Stamp Act. The foregoing circumstances would suggest that the learned trial court has proceeded with matter in accordance with law and the impugned order suffers no infirmity."
3. It is contended on behalf of the petitioners that afore-cited orders of the Courts below are perverse and illegal for the reasons: (a) that whenever a decree is passed by the Civil Court, it is bound to draw a decree sheet as appeal lies against the decree and not against the judgment; (b) that it was imperative for the learned Trial Court to draw up decree sheet and the same could not be postponed due to non-provision of stamp-paper and non-payment of taxes etc; and, (c) that the petitioners cannot be deprived of their right of appeal on account of omission or negligence on the part of the trial court. The above noted arguments have been controverted by the learned counsel for the respondents. He submits that in a suit for partition of immovable property final decree is to be stamped as an instrument of the partition under section 2 (15) read with Article 45 of Schedule I of the Stamp Act, 1899; that the petitioners as per final judgment dated 12.10.2013 is bound to submit requisite stamp paper; and, that without payment of requisite stamp paper final decree sheet cannot be prepared.
4. The arguments canvassed by the petitioners' counsel are persuasive. Section 33 of C.P.C. Enjoins upon the Court to pronounce judgment after the case has been heard and requires that on such judgment a decree shall follow. It is the decree of the Court, which is appealable under section 96 CPC. Decree has been defined in subsection (2) of section 2 CPC as under: "(2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively, determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint the determination of any question within section 144, and an order under rule 60,98,99,101 or 103 of Order XXI but shall not include-
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default"
Explanation- - A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final."
5. Order XX CPC deals with judgments and decrees. Rule 6 of Order XX says that the decree shall agree with the judgment; it shall contain the number of the suit, the names and description of the parties and particulars of the claim and shall specify clearly the relief granted or other determination of the suit. Rule 20 of Order XX CPC cast duty upon the Court to furnish to the parties on application and at their expense certified copies of the judgment and decree.
6. Rule 6 of Order XX CPC deals with contents of the decree. A combined reading of section 33 with Rule 6 of Order XX CPC makes it clear that on judgment being passed decree automatically follows. Obligation is on the part of the Court to draw up decree in terms of various provisions of Order XX CPC. Drawing up of decree cannot be withheld. Its certified copy has to be supplied to the parties at their expense so as to enable them to file appeal. It may be that due to 5 WP.No.26684-15 section 11 of the Court Fee Act, 1870 the decree is not executable until court-fee is paid or under the Stamp Act, 1899 the document is not effective for the purposes of taking proceedings, but in either case there is no reason as to why decree sheet should not be prepared. The Court cannot evade the performance of its duty of drawing up the decree, which may be preliminary or it may be final, and is not concerned whether such a decree will be executable or not. [See Kedar Nath Goenka v Chandra Mauleshwar Prasad Singh (AIR 1932 Patna 228) Siri Ram and others v Jagan Nath and others (AIR 1957 Punjab 66), Faqir Muhammad Khan v Senior Member, Board of Revenue and 5 others (1990 M LD 575) and Khawja Muhammad Arif v Mrs. Tahira Asif and others (PLD 2005 SC 972)].
7. In view of various provisions of the Code of Civil Procedure, as noticed above, there is no manner of doubt that once a judgment is delivered and signed, there is no option left with the Court except to draw decree in terms of the judgment. Drawing up of a decree cannot be postponed. Thus answer to the question, under discussion, is that the learned Trial Court could not stop preparation of final decree of the suit for partition pending payment of stamp paper and other taxes, etc. In this regard guidance may be had from the cases of Velagala Sriramareddi and others v Karri Sriramareddi (AIR 1941 Mad 929) and Mirshebmiya Bahadarmiya Sheikh v State of Gujrat (AIR 1981 NOC 215).
8. In the sequel, this petition is accepted, judgment dated 03.8.2015 of the learned Additional District Judge, Lahore, and the order dated 28.02.2015 of the learned Civil Judge, Lahore, are hereby set aside and declared to have been passed without lawful authority and of no legal effect and resultantly the petitioners' application under sections 2(2), 33,151 read with Order XX Rules 1 to 6 C.P.C for drawing up of decree-sheet is allowed as prayed for.