Venkataramana Rao, J.
1. These two revision petitions arise out of an order made by the learned Subordinate Judge of Narasapur impounding a document, Ex. A., which was filed in S.C.S. No. 173 of 1932 on the file of the Sub-Court, Narasapur. The suit was upon a promissory note and the document was tendered in evidence, filed and proved in proof of the consideration for the note on 21st October 1932, and on the very same day the learned Judge delivered judgment decreeing the suit. On 15th February 1933, the office of the Subordinate Judge brought to his notice that Ex. A was not properly stamped and thereupon he impounded the document, and sent it to the Collector with a letter bearing date 24th February 1933. Thereupon the Collector levied a penalty of Rs. 185 and recovered it from the plaintiff in that case. This was on 29th March 1933 and the document was returned to the Court on 23rd April 1933. The plaintiff thereupon instituted a suit out of which C.R.P. No. 329 of 1935 arises for the recovery of the said sum of Rs. 185 with interest thereon. The District Munsif gave a decree in favour of the plaintiff on the ground that under Section 29, Stamp Act, the penalty was payable by the defendant who executed the bond. It seems to me that this order of the Diatrict Munsif is unsustainable. Section 29, Stamp Act, will only be applicable to a case where the document is not produced before the Court; but when once the document has been produced before the Court and tendered in evidence, the right of recovery is only by virtue of Section 44, Stamp Act. But in order to entitle the plaintiff to recover under that section, the amount must have been included in the costs at the time of the passing of the decree; or else he has no right to institute any proceeding in regard thereto. The Civil revision petition is therefore allowed and the order of the lower Court set aside but in the circumstances each party will bear his own costs.
2. During the hearing of C.R.P. No. 329 of 1935, it struck me that the order of the learned Subordinate Judge impounding the document is illegal. I therefore admitted the Civil Revision Petition against the said order and directed notice to the Sub-Collector of Narasapur and notice was served upon him. He has not chosen to appear before me in support of the said order. As has been already pointed out by me, the document was filed and proved in Court on 21st October 1932, admitted in evidence and acted upon by the learned Subordinate Judge. At the time of the admission of the document, he has not chosen to levy any penalty. Having failed to do so and the judgment having been delivered in the suit, he has become functus officio and it is not therefore open to him to re-open the matter and impound the document: vide Khetra Mohan Saha v. Jamini Kanta : AIR1927Cal472 . The only remedy of the Collector, if any, is to move Under Section 61, Stamp Act, and he has not done so. This is clearly pointed out in the Full Bench decision reported in Reference under Stamp Act, Section 46, (1885) 8 Mad 504 , where under exactly similar circumstances their Lordships considered the levy to be illegal. In the course of the judgment their Lordships observed as follows:
He had admitted the document in evidence and proceeded to judgment on 18th September and he was functus officio. When an instrument has been admitted in evidence and judgment delivered, its admission can only be called in question in a proceeding Under Section 50 (corresponding to Section 61, Stamp Act). We accordingly quash the order of 26th September.
3. It seems to me therefore that the order of the learned Subordinate Judge impounding the document is illegal and ought to be set aside. I make no order as to costs. It is open to the petitioner to apply to the revenue authorities for the refund of the said amount.