Final Decree in Partition Suit Must Be Fully Stamped to Be Executable: Calcutta High Court Grants Liberty to Decree Holder to Cure Defect

"Until a final decree is drawn up and engrossed on proper stamp paper, there is no executable decree" –  In a significant ruling reinforcing the importance of stamp duty compliance in partition suits, the Calcutta High Court on February 9, 2026, held that a final decree in a partition suit cannot be executed unless it is duly stamped in respect of the entire suit property. However, the Court granted liberty to the decree holder to pay the deficit stamp duty, with the right to recover proportionate amounts from other co-sharers.

Justice Shampa Dutt (Paul held:

“Relying upon the judgments in Shankar Balwant Lokhande and Kattukandi Edathil Krishnan, the revisional application is disposed of with liberty granted to the decree holder to pay the total stamp duty... to make the final decree executable.”

The petitioner had challenged the execution of the final decree, arguing that the stamp duty was paid only for one share and not in respect of the total property, rendering the decree inexecutable. The executing court had issued writ of possession under Order XXI Rule 35 CPC, which was assailed in revision.

Executing Court Cannot Act on Incompletely Stamped Decree

The core issue was whether a partition decree, stamped only in relation to the share of one party, could be executed in full. The judgment debtor (petitioner) argued that no final decree can be drawn or executed unless full stamp duty on the entire property is paid, citing Article 45 of Schedule IA of the Indian Stamp Act (as applicable to West Bengal).

Rejecting the executing court’s reasoning that equal shares justified treating one as the “separated share” under Article 45, Justice Dutt observed:

“The decree holder paid stamp duty equivalent to one of such equal shares... As of now, admittedly only the plaintiff/decree holder has paid stamp duty in respect of his declared share in the suit property.”

Citing Shankar Balwant Lokhande v. Chandrakant Shankar Lokhande, (1995) 3 SCC 413, the Court reiterated:

“Until the final decree determining the rights of the parties by metes and bounds is drawn up and engrossed on stamped paper(s)... there is no executable decree.”

Decree Holder’s Undertaking to Cure the Defect Saves Execution

During the proceedings, the decree holder undertook to pay the total stamp duty on the entire suit property, with liberty to recover respective contributions from the other co-sharers. Accepting this undertaking, the Court ordered:

“On payment of the same, the executing Court shall put the decree into execution and ensure its full satisfaction within one month thereafter.”

The Court also vacated all interim orders and disposed of the connected applications.

Partition Decree Must Follow Order XX Rule 18 CPC in Full

Referring to Kattukandi Edathil Krishnan v. Kattukandi Edathil Valsan, (2022) decision by the Supreme Court, the Court underscored that suits for partition are only concluded upon drawing and engrossment of the final decree, and that trial courts must proceed suo motu to final decree stage after a preliminary decree.

“A preliminary decree merely declares the rights and shares of the parties... After the inquiry... a final decree incorporating such determination needs to be drawn up.”

Stamp Duty Compliance Essential for Executability

While dismissing the petitioner’s challenge on technical grounds, the High Court acknowledged the legal requirement that a final decree must be fully stamped before it becomes executable. By allowing the decree holder to cure the defect and proceed with execution, the Court ensured balance between procedural compliance and substantive justice.

Date of Decision: 09 February 2026