GRANDHI CHAKRAIAH Vs. GRANDHI PITCHAIAH

JUDGEMENT

(1.) Both the Second Appeal and the C.R.P. raise the same question bearing on the interpretation of Section 44 of the Indian Stamp Act. When the matter came up before Justice Umamaheswaram for final hearing, he thought that an important question of law was involved in it and should therefore be decided by a Bench.

(2.) The material facts giving rise to the appeal and the C.R.P. are within a short compass and may be stated as follows : In a suit for dissolution of partnership, the plaintiff relied on an instrument which was not stamped. The trial Court impounded the document before it was admitted in evidence and had the necessary stamp duty and penalty collected. Ultimately, the suit ended in a decree in favour of the plaintiff. The unsuccessful defendant carried the matter in appeal, While the appeal was pending the Appeal Examiner issued a check-slip to the effect that the document fell under Article 39 of the 1st schedule to the Stamp Act and the duty and penalty should have been collected on that basis and not as one coming within the scope of Article 48. After notice to the appellant, the Judge decided that the instrument was governed by Article 39 and therefore the difference in duty and penalty should be collected from the appellant. For that purpose, it was sent to the Collector. It may here be mentioned that the appellant does not seem to have contested that the instrument was a memorandum of association of a Company. It seems to have been conceded that it was not an agreement of partnership. The Collector levied a sum of Rs. 423-8-0 towards stamp duty and penalty and this was collected from the appellant. Subsequently the appeal filed by the present respondent was dismissed with costs for default, The appellant in the memo of costs filed by him included the sum of Rs. 423-8-0 and this was comprised in the decree for costs.

(3.) When the respondent was apprised of this he moved the Subordinate Judge to delete this sum from the decree for costs on the ground that it was illegally included and he was not liable to bear this burden.