1. In O. S. 259/53 the respondents brought a suit on the file of the Munsiff, Civil Station, Bangalore, against one Ramdas for the recovery of a certain sum of money said to be due to them under a promissory note. In that suit the respondents appear to have obtained an attachment of certain moveable properties. To this attachment the petitioner objected and preferred a claim, petition under the provisions of Order 38, Rule 8, C. P. C. In support of his claim the petitioner appears-to have relied upon two documents. One of them, was a sale deed dated 20-11-1950 and the other was an agreement to pay hire.
It appears that the petitioner did not wish to rely on the sale deed in support of his claim but wished to do so only on the other agreement. The learned Munsiff, after perusing the sale deed on which the petitioner relied in support of his claim, tame to the conclusion that that document was liable to be impounded under the provisions of Section 33 of the Stamp Act since it appeared to him that that document was not duly stamped,
2. Having impounded that document in that way, he made a further order that the petitioner should pay the duty and penalty to be fixed by the Court in accordance with the law in force in the year 1950. The petitioner has filed this revision petition against that order of the Munsiff.
3. It is contended by Sri Govinda Rao, learned Counsel for the petitioner, that although the order of the learned Munsiff impounding the document under the provisions of Section 33 of the Stamp Act is not liable to be assailed on any ground whatsoever, the further order made by him that the petitioner shall pay the duty and penalty to be fixed by the Court in due course was unsustainable.
His argument is that ordinarily a document impounded under Section 33 of the Act should be sent by the Court so impounding it to the Deputy Commissioner under the provisions of Sub-section 2 of Section 38-of the Stamp Act unless the Court which impounded the instrument admitted such instrument in evidence, in which event, it could do so on payment of the duty with which the instrument is chargeable-together with a penalty as provided by Section 35 of the Act. His contention is that it is only if a document is asked to be admitted in evidence that it becomes exigible to such duty and penalty and not otherwise.
4. It is not disputed that in this case the document in respect of which the petitioner was required by the Court to pay such duty and penalty was not sought to be produced in evidence. That document was merely produced before Court and the petitioner did not seek to get that document admitted in evidence so far. This was therefore, plainly a case to which Sub-section (2) of Section 38 applied so that the Court should have sent the document in original to the Deputy Commissioner for necessary action under Section 40 of the Act.
5. Sri Chandrasekhar appearing for the Advocate-General and Sri Venkatanarasimhiah appearing for the Respondents did not argue that the ordermade by the Court below was an order that couldproperly be made in the circumstances of the ease.In my opinion, the stage when the lower Courtcould direct the petitioner to pay any duty andpenalty was never reached in this case. Thatbeing so, the direction of the Court below that thepetitioner should pay any duty and penalty in respect of the sale-deed is unsustainable and is there-fore, set aside. In the circumstances of this case,there will be no order as to costs.
6. Revision allowed.