Basil Scott, Kt., C.J.
1. The ground upon which the applicant asks this Court to interfere under Section 115 of the Code is that the lower Courts failed to exercise their jurisdiction in not sending the promissory note sued upon to the Collector to be dealt with under the rules framed under the Indian Stamp Act and that the lower Court acted illegally in the exercise of its jurisdiction in dismissing the suit altogether.
2. The suit was brought upon a demand promissory note which required a one anna stamp. It was not stamped with a one anna stamp, but with four postal stamps of a quarter anna each. The rules made under the Indian Stamp Act permit of the stamping, of documents requiring a duty of one anna with either an adhesive stamp of one anna, or two stamps of half an anna. But that is the only variation permitted from the statutory provision that a one anna stamp is required.
3. In this case, therefore, the promissory note was not duly stamped. Section 35 of the Indian Stamp Act says 'no instrument chargeable with duty shall be admitted in evidence for any purpose by any person having authority to receive evidence, or shall be acted upon, unless such instrument is duly stamped, provided that any such instrument not being an instrument chargeable with a duty of one anna only, or a bill of exchange or promissory note, shall, subject to all just exceptions, be admitted in evidence on payment of the duty with which the same is chargeable, or, in the case of an instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion.'
4. The proviso does not apply to the instrument in question, because it is both chargeable with the duty of one anna only and is a promissory note.
5. It is however, contended that the stamps affixed are merely stamps of improper description, though sufficient in amount and that the rules of the Governor General in Council under Section 37 of the Act allow the document to be deemed to be duly stamped on payment of the duty with which the instrument is chargeable. Now those words 'stamp of improper description' have been construed by a Full Bench of the Allahabad High Court upon a reference under the Act (see' Reference under Section 57 of Act No. II of 1899 I.L.R. (1901) All. 213 whose conclusion was that Section 37 of the Indian Stamp Act and also Rule 16 of the rules of the Governor General in Council does not include within the words 'a stamp of an improper description ' a description of stamp appropriate to purposes altogether outside the Indian, Stamp Act, but is confined to a stamp which is used for the purpose of denoting the stamp duty chargeable on an instrument, but which is improper in a particular case having regard to the Act and the rules.
6. Following that decision we hold that this is not a case of a stamp of improper description provided for by the rules. The only rule applicable in the present case would be Rule 16 which says that ' when an instrument bears a stamp of proper amount, but of improper description, the Collector may, on payment of the duty with which the instrument is chargeable certify by endorsement that it is duly stamped.' Now inasmuch as this is not a case of a stamp of improper description within the meaning of the rules under Section 37 of the Act, the Collector has no power to certify by endorsement that the instrument is duly stamped. That being so, no benefit would have resulted to the plaintiff if the Subordinate Judge had sent this instrument to the Collector, for the Collector would have no power to stamp it and it would still remain as it is a document not duly stamped. Under these circumstances the Court certainly did not act illegally in the exercise of its jurisdiction in dismissing the suit altogether, for the suit was not maintainable. We, therefore, discharge the Rule with costs.