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In Re: Reference Under Section 113 Read with Order 46, Rule 1, Civil P.C. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1925Cal906
AppellantIn Re: Reference Under Section 113 Read with Order 46, Rule 1, Civil P.C.
Cases ReferredDwarkanath Dey v. Sailaja Kanta Mullik
Excerpt:
- .....(3) of the civil procedure code before receiving certain money on behalf of the minor. ha filed a security bond, and then a question arose as to whether the bond was to be stamped under the court fees act, or under the stamp act. the learned munsiff found that there were two conflicting decisions on the point viz., the case of dwarkanath dey v. sailaja kanta mullik [1916] 21 c.w.n. 1150 and that of sarbo musulmani v. safar mandal 1913 cal. 269, and ha referred the question to this court under she provisions of order 46, rule 1 of the civil procedure code.2. a division bench finding the two decisions to be directly opposed to one another has referred for the decision of a full bench the question whether a security bond executed under the order of the court passed under order 32, rule 6.....
Judgment:

Walmsley, J.

1. The circumstances which have given rise to this reference are as follows. In an execution case at Habiganj, the next friend of a minor decree-bolder was directed to furnish security under order 32, rule 6 (3) of the Civil Procedure Code before receiving certain money on behalf of the minor. Ha filed a security bond, and then a question arose as to whether the bond was to be stamped under the Court Fees Act, or under the Stamp Act. The learned Munsiff found that there were two conflicting decisions on the point viz., the case of Dwarkanath Dey v. Sailaja Kanta Mullik [1916] 21 C.W.N. 1150 and that of Sarbo Musulmani v. Safar Mandal 1913 Cal. 269, and ha referred the question to this Court under She provisions of Order 46, Rule 1 of the Civil Procedure Code.

2. A Division Bench finding the two decisions to be directly opposed to one another has referred for the decision of a Full Bench the question whether a security bond executed under the order of the Court passed under Order 32, Rule 6 (2) or under any other order or section of the Civil Procedure Code should be stamped under the Court-Fees Act or under the Stamp Act.

3. The learned Government Pleader has appeared before us, and has suggested that our answer should be to this effect, that such security bonds should be stamped under Article 6, schedule II of the Court-Fees Act unless they are of such a nature as to attract the operation of Article 40 or Article 57 of the Stamp Act.

4. Article 6 of schedule II of the Court Fees Act now runs ' Bail bond or other instrument of obligation given in pursuance of an order made by a Court or Magistrate under any section of the Code of Criminal Procedure or the Code of Civil Procedure.'

5. I feel no hesitation in holding that a security bond of the kind mentioned in the Munsif's letter comes within this description. With all deference to the learned Judges who decided the case of Dwarkanath Dey v. Sailaja Kanta Mullik [1916] 21 C.W.N. 1150, I think they placed too narrow a meaning on the words 'in pursuance of.' Compliance with a condition imposed by a Court is, in my opinion, an act done In pursuance of the Court's order: and I think that the narrow construction proposed in the judgment mentioned would render Article 6 nugatory.

6. It does not follow however that because a security bond falls within the scope of article 6, schedule II of the Court-Fees Act, it is free from the provisions of the Stamp Act. This Act contains a clause, Section 2 (5), which enumerates three kinds of instruments which are to be regarded as bonds. Then in schedule I there are three Articles which have a bearing on the question before us, viz., Articles 15, 40 and 57. They are as follows:

7. Article 15. Bond [as defined by Section 2 (5)] not; being a Debenture [No. 27] and not being otherwise provided for by this Act, or by the Court-Fees Act, 1870.

8. Article 40. Mortgage deed, not being an agreement relating to deposit of title deeds, Pawn or Pledge (No. 6,) Bottomry Bond. (No. 16), Mortgage of a Crop (No. 41), Respondentia Bond (No. 56) or Security Bond (No. 57.)

9. Article 57. Security Bond or Mortgage deed 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.

10. A comparison of these articles shows that Article 15 is of a residuary character, intended for bonds which cannot be assigned to any other of the Articles of the Stamp Act and are not provided for by the Court-Fees Act. It is the only article in which reference is made to the Court-Fees Act. It follows therefore that a bond which finds its proper place in one or the other. Articles is not exempt from duty under the Stamp Act, and, at the same time, as being given in pursuance of the Court's order, it is liable under Article 6 of schedule II of the Court-Fees Act.

11. The answer that I purpose to the reference is that security bonds executed in pursuance 'of an order of the Court under order 32, Rule 6 (2) or any other rule or section of the Civil Procedure Code must bear a Court-fee stamp as required by article 6 of schedule II of the Court Fees Act, 1870; and they will also be chargeable under the Stamp Act if they are of the kind described in Article 40 or Article 57, but they will not be chargeable under the Stamp Act if they fall under the residuary article 15.

Greaves, J.

12. I agree.

C.C. Ghose, J.

13. I agree.

B.B. Ghose, J.

14. I agree.

Mukerji, J.

15. I agree.


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