1. This second appeal is filed wrongly, in my opinion, with respect to deficiency of stamp duty and penalty recovered by the Subordinate Judge from the defendant appellant Pearey Lal. The subordinate Courts have been in error, but that is not a sufficient reason for this Court to continue therein. The proper procedure to be adopted by the Subordinate Judge is one laid down in Sections 33 and 38 of the Stamp Act. Since the Subordinate Judge discovered that an instrument presented to him was insufficiently stamped he was bound to impound it. The words of the first part of Section 33 of the Stamp Act leave no option in the matter. After impounding he has to proceed under Section 38 of the Stamp Act. In this case he admitted the instrument in evidence upon payment of a penalty and of deficient duty, so he was bound to send to the Collector an authenticated copy of the instrument on which the duty and penalty were levied together with a certificate in writing, stating the amount of duty and penalty in respect thereof. Presumably the amount was sent to the Collector as laid down in that section.
2. The decision then finally rests with the Collector to determine whether the instrument was really insufficiently stamped or not, and he has also the power of remitting the penalty in excess of five rupees under Sections 41 and 39 of the Stamp Act. That duty cannot he discharged by an appellate Court. The Collector has further to give a certificate as to the payment of duty and penalty and on the basis of such certificate the person paying them for the time being would be entitled, if he so desires, to recover the money under Section 44 from the person liable under the law to pay the duty on the instrument. A complete procedure is provided under Ch. 4 of the Stamp Act and the trouble has arisen from the civil Court's disregard of the express provisions of Statute Law.
3. I hereby direct the Subordinate Judge of Moradabad for the time being to take action with respect to the instrument on the record of 21st December 1911, as directed in this order. A copy of this order shall be sent to B. Ganga Nath, Subordinate Judge, for his information wherever he may be posted. The appeal is otherwise dismissed without any order as to costs.