THE DISTRICT MUNSIF,
High Court, Madras.
1. I have the honor to refer under Section 60 of Act II of 1899 for the decision of the High Court the proper stamp duty leviable on the document forwarded herewith.
2. The document was executed by the 2nd defendant in O. S. 38 of 1909 on the file of the District Court of Chingleput and two sureties under Rule 7, page 31 of the Civil Courts guide, for the production when called for of the attached moveables left in their custody by an Amin of this Court. The warrant was sent to this Court for execution and was entrusted by my Deputy Nazir to the Amin. After attachment he obtained this bond as usual in this Court on axme rupee stamp paper (general) being the advalorem stamp on the value of the attached cattle. When the same was forwarded to the District Court it was returned to this Court with an order that a fresh bond should be taken on a paper with 8 annas Court fees label attached toitas required by Article 5 Schedule II of the Court Fees Act. I submitted that the bond was correotly stamped under Article 57 Schedule I of Act II of 1899 and that the Court fees Act was not applicable. Thereupon a further proceeding was received with the bond requiring a fresh bond and a direction that the practice of this Court should be corrected.
3. As I held judicially elsewhere when such a bond was sought to be enforced that bonds of this character should bear ad valorem general stamp and not 8 annas Court fee label and as the different opinion of the District Judge has thrown doubt on the correctness of my view I beg to refer the question for the decision of the High Court.
4. Rule 7 of the Civil Courts guide was framed under Section 269 of the old C.P.C. and continue in force under Section 157 of the present C.P.C. It will be treated as framed under the present Sections 122 and 128b. It will therefore be enforceable by execution process under Section 145 but it has to be determined whether the document is one excluded from the purview of the Act II of 1899. Article 15 of that Act provides for 'Bond (as defined by Section 2(i) not being a debenture (No. 27) and not being otherwise provided for by this Act or by the Court Fees Act VII of 1870.' Among the bonds for which special provision is made are 'Indemnity bonds' (24) and security bonds (L7). The Court Fees Act provides for Bail bond or other instrument of obligation in pursuance of an order made by a Court or Magistrate under any section of the Code of Criminal Procedure Code 1882 or the Code of Civil Procedure.' An order to attach cattle implied an order to obtain security bond as per rules framed under proper authority but it may be a question whether such an instrument could be described as executed 'under any section of the Civil Procedure Code.' Assuming however that it was so I am of Opinion that the bond in question does not wholly fall under this article and requires to be stamped under the Stamp Act.
5. Under Rule 7 of the Civil Courts guide (Page 31) cattle may be left in the charge of a judgment debtor if he ' enters into a bond in the form given in Schedule A appended to these rules with one or more sufficient sureties for its production when called for.' The 2nd defendant was therefore the principal and his 2 co-executents were his sureties. Section 19 Clause 15 of the Court Fees Act exempts from Court fees ' Bail bonds in Criminal cases, recognisances to prosecute or give evidence and recognizances for personal appearance or otherwise even if an undertaking to produce the person of another be exempt as undertaking to produce material objects, documents and so forth would perhaps not be exempt.
6. Article 57 of the Stamp Act provides for duty on security bonds or mortgage deeds ' executed by way of security for the due execution of an office or to account for money or other property received by virtue thereof or executed by a surety to secure the due performance of a contract.' The executants of the bond may in certain cases be deemed officers in custody of the attached properties (compare Order 21 Rule 43) but if not there was certainly a contract and the sureties who joined in the execution of the bond were expressly required as such to join in it and in as far as their obligation is concerned they fall under that article. It will be observed that there is no proviso in this article that payment under the Court Fees Act exempted them from liability under this article. The principle in Kulwanta v. Mahabir Prasad I.L.R. (1888) A. 16 Soorjharee Kunwar v. Ramessur (1866) 5 S.W.R. Mis. 47 would therefore be applicable. In this connection the case of the obligation being charged on immoveable property may also be referred to. Such instruments are treated as mortgages even though executed under the Civil Procedure Code. The Board of Revenue has also ruled to the same effect (vide Resolution No. 2273 dated 9th September 1899 Registration Circular No. 11 dated 23-9-1899) and instruments of that nature are not registered by the Registering Officers unless they are stamped as mortgages. The Legislature did not amend articles 57 or 34 even when they thought fit to do so in regard to art. 15 Stamp Act and 16 Schedule II of the Court Fees Act, I am therefore of opinion that a security bond by sureties to see to the production by the decree holder judgment-debtor or claimant as the case may be of attached moveable entrusted to the former are chargeable under Article 57 and that they are not liable under the Court Fees Act. In this connection I may also refer to certain other cases under the Civil Procedure Code when the taking of security may be ordered e.g. where there is an attachment of arrest before judgment (Order 38 Rules 1 and 5) or for costs (Order 25 Rule 1 and Order 45 Rule 7) where execution or stay thereof is ordered (Order 41 Rules 5 and 6 and Order 21 Rule 26) where money is paid out to the guardian of a minor entitled to it (Order 32 Rule 6) and where an arrested judgment-debtor desires to file an insolvent application (Section 55). In most of these cases security on immoveable property is demanded and registered bonds are filed bearing ad valorem general stamp.'