LALA BHAGWATI DEEN Vs. MOHAMMAD ISMAIL

JUDGEMENT

(1.) Our learned brother Srinivasa Chari J., has referred this case, which initially came before him, to a Bench having regard to the question of law involved in the appeal. The question involved is whether the present suit of the plaintiff for recovery of costs of the amount of penalty paid by him in the earlier suit could be maintained. In order to determine the question of law involved, a reference to the facts of the case is necessary.

(2.) The plaintiff-respondent herein filed a suit for recovery of Rs. 663.00 on the basis of certain bonds which were insufficiently stamped. Subsequently, during the course of the trial, the plaintiff-respondent paid the stamp duty and penalty on those bonds. In that suit, the parties entered into a compromise, and on the basis of the compromise, a decree was passed on 5-9-1953 in favour of plaintiff for Rs. 638.00 with costs. In the decree, the amount of stamp duty and penalty paid by the plaintiff was not included in the costs of the suit. The plaintiff-respondent, therefore filed an application under Section 152 of the Code of Civil Procedure, praying that the amount of penalty and stamp duty paid by him be included in the costs awarded under the decree. The Munsif passed an expert order directing the inclusion of the amount of penalty and amendment of the decree accordingly. The judgment-debtor on 27-10-1953 appeared and filed a petition, objecting to the inclusion of the penalty on the ground that that was not an arithmetical error or an omission that could be rectified in an application under Section 152, C. P. C. The Munsif accepted the contention of the judgment-debtor and set aside the previous order directing the inclusion of the amount of penalty. This subsequent order of the Munsif became final as no revision appears to have been filed against that order. The plaintiff-respondent has now filed the present suit for the recovery of Rs. 137-6-0 being the amount of penalty paid by him. The appellant, who was the defendant in the trial Court, s pleaded that the suit was not maintainable. The trial Court repelled the contention of the defendant and gave a decree to the plaintiff-respondent for the said amount. Aggrieved by the judgment and decree of the trial court, the defendant went in appeal. This appeal of the defendant has been dismissed by the appellate Court. The defendant came in second appeal to this Court which as stated earlier, initially came before our learned brother, Srinivasa Chari, J., who has made this reference.

(3.) The sole question that has to be determined in this appeal is whether the present suit of the plaintiff-respondent is maintainable. The contention of the appellant is that the present suit is not maintainable and action should have been taken in the original proceedings alone, whereas the contention of the respondent-plaintiff is that haying regard to the provisions or the Hyderabad Stamp Act such a suit was permissible. In order to appreciate, the respective contentions of the learned counsel a reference to the relevant provisions o the Hyderabad Stamp Act in this regard is necessary. The relevant provision of the Hyderabad Stamp Act is Section 42 which corresponds to Section 44 of the Indian Stamp Act.