Jagat Narayan, J.
1. This is a plaintiff's revision application against an order of the Senior Civil Judge No. 2. Jodhpur, holding that a document relating to the sale of a truck is inadmissible in evidence by virtue of Section 35 of the Stamp Act as it la not duly stamped.
2. The case of the plaintiff with regard to this document is that it is an agreement or memorandum of agreement relating to the sale of goods and is exempt from stamp duty under Exemption (a) to Article 5 of the First Schedule of the Stamp Act. The trial court held that it is a conveyance which is chargeable with stamp duty under Article 23 of the First Schedule.
3. On behalf of the defendants two preliminary obiections have been taken with regard to the maintainability of this revision application. The first objection is that the finding of the trial court is based on an interpretation of the document and an interpretation of the provisions of the Stamp Act and if there is any error it is an error of law which cannot be interfered with in revision.
4. It is not correct to say that no error of law can be corrected on an application under Section 115, C. P. C. An error of law by which a court assumes jurisdiction which it has not, or declines to exercise a jurisdiction which it has, will come under Clauses (a) and (b). An error of law in the mode prescribed for the exercise of jurisdiction will come under clause (c). Such errors can be corrected under Section 115. C. P. C. It is only a decision of the case on merits arrived at in the proper exercise of jurisdiction which cannot be corrected on an application under Section 115, C. P. C. oil the ground that it is erroneous in law. All procedural errors fall under clause (c). The question as to whether a document is admissible or not admissible is a matter of procedure. The first preliminary objection has therefore no force.
5. The second preliminary objection is that as the plaintiff has an alternative remedy under the Stamp Act this Court should not interfere with the order of the trial court under Section 115. C. P. C. That remedy is provided by Section 45 of the Stamp Act which runs as follows:--
'45. (1) Where anv penalty is paid under Section 35 or Section 40, the Chief Controlling Revenue authority may, upon application In writing made within one year from the date of the payment, refund such penalty wholly or in part.
(2) Where, in the opinion of the Chief Controlling Revenue authority, stamp duty in excess of that which is legally chargeable has been charged and paid under Section 35 or Section 40, such authority may, upon application in writing made within three months of the order charging the same, refund the excess.'
6. The power given to the Chief Controlling Revenue-authority to refund is discretionary and no further proceedings are maintainable if the application is refused. The remedy provided by Section 45 is thus not as efficacious as the remedy provided under Section 115, C. P. C. 1 am therefore of the opinion that a revision application should be entertained against an order of the subordinate court holding that a document is inadmissible in evidence under Section 35 of the Stamp Act, if the contention of the applicant is that either the document does not require any stamp or it is sufficiently stamped If however the document is insufficiently stamped (which includes documents which require to be stamped but are unstamped no revision would He against an order offering to admit the document in evidence on payment of a certain amount of duty and penalty if the contention of the applicant is that the document has been wrongly classified and the duty and penalty demanded are excessive.
7. My attention has been drawn to decisions of some High Courts in which it has been held that as an alternative remedy has been provided under Section 45 of the Stamp Act, no revision application should be entertained by the High Court. For reasons given above. I am unable to subscribe to the view taken in them. I accordingly hold that the present revision application is maintainable.
8. The facts of the case are that a truck RJQ 2927 was sold by defendant No. 1 to Poonamchand plaintiff and Dhanraj defendant. The document in question was executed on the date of the sale. It is recited in it that the truck was sold on the date of the execution of the document to Poonamchand and Dhanraj for Rupees 19,001/-. The price was to be paid in instalments of Rs. 450/- per month. Interest was payable monthly at 9 per cent, per annum on the price which remained to be paid. If interest was not paid at the end of each month it was to be added to the principal amount and further interest was to accrue on the whole of this amount. The truck was delivered to the buyers on the date of the execution of the deed, but it was provided in it that in case there was any default in the payment of instalments the seller would be entitled to seize the truck and keep it with himself. In case of such seizure the buyers were entitled to get the truck released on payment of the instalments due within a period of one month of the seizure. If the buyers failed to get the truck released within the period of one month from the date of seizure the seller was entitled to sell the truck and recover the deficiency in price from the buyers. There are some other terms so incorporated In the deed which are redundant because they amount merely to a statement of the law.
9. So far as the terms relating to the payment of the price in instalments and the payment of interest are concerned they are part of the agreement to sell. So far as these terms are concerned the document is exempt from stamp duty under exemption (a) to Article 5 of the Stamp Act which runs as follows:--
'Agreement or memorandum of agreement,--
(a) for or relating to the sale of goods or merchandise exclusively, not being a Note or Memorandum chargeable under No. 43,' The above document does not fall under Article 23. A motor truck is 'goods' within the meaning of Section 271 of the Sale of Goods Act. The document is thus an agreement or memorandum of agreement relating to the sale of goods. In this connection I may refer to the decision of the Full Bench of the Allahabad High Court in In re. Raj Balamgir, AIR 1931 AH 392.
10. But the above document is not exclusively an agreement or memorandum of agreement relating to the sale of goods. The terms contained in it entitling the seller to seize the truck and keep it with him if instalments were not paid in time and thereafter to sell it are not statutory rights of a seller under the Sale of Goods Act. These terms constitute an agreement between the parties which is in addition to the agreement relating to the sale of goods.
11. Under the Sale of Goods Act an unpaid seller has a Hen on the goods only when they are still in his possession --See Section 46(1)(a). He has no right of re-sale of the goods once they have Rone into the possession of the buyer.
12. In this connection I may refer to the decision of the Full Bench of the Allahabad High Court in Revenue Board v. P. B. Singh, AIR 1957 All 391.
13. I accordingly hold that the document is chargeable with duty as an agreement. The trial court erred in holding it to be a conveyance within the meaning of Article 23. As the document was however inadmissible in evidence because it was insufficiently stamped no interference can be made in revision with the order of the trial Court as has been explained by me above.
14. I accordingly dismiss the revision application. In the circumstances of the case, 1 leave the parties to bear their own costs of it.