INDERMAN MAHTON Vs. THAKUR MAHTON

JUDGEMENT

(1.) This rule is directed against an order of the learned Munsif of Bihar, dated 13- 11-1946, by which the learned Munsif has impounded two documents and directed the petitioners to pay duty and penalty as required by the provisions of the Stamp Act. The petitioners were defendants in an action for partition. They filed two documents, a hukumnama and a punchnama, which were not admitted in evidence. The suit, which was Title suit No. 5 of 1943, was dismissed on 15-9- 1945. After the dismissal of the suit the opposite party, plaintiffs in the suit, filed a petition on 18-9-1945, praying that the aforesaid two documents be impounded, and that the petitioners be directed to pay the duty and penalty thereon. On 25-9- 1945, the learned Munsif directed the petitioners to pay Rs. 50 as stamp duty and Rs. 500 as penalty, in all a stamp of Rs. 550, in respect of the punchnama. The petitioners then moved the learned Munsif, praying that the document could not be impounded after the disposal of the suit, and, further, that the petitioners could be made liable only for their proportionate share, and also that if any penalty were realised from the petitioners, the amount should be made part of the costs of the suit. The learned Munsif, by his order dated 13-11-1916, dismissed the objection of the petitioners.

(2.) The point raised before us is that the learned Munsif had no jurisdiction to impound the document after he had become functus officio. In other words, the contention before us is that the learned Munsif could not impound the document under Section 33, Stamp Act, after the decision of the suit in which the document had been filed. The point is not covered by any authority of this Court, but learned Counsel for the petitioners has referred to several decisions of other High Courts, in which it has been held that the Court is functus officio after the disposal of the suit, and cannot impound a document under Section 33, Stamp Act after decision had already been given in the suit in which the document was filed. The decisions relied on by learned Counsel for the petitioners are: Reference under Stamp Act, Section (85) 8 Mad. 564, A.I.R. 1930 Collector, Ahmadnagar V/s. Rambhau A.I.R. 1930 Bom. 392, Khetra Mohan Sah V/s. Jamini Kanta and A.I.R. 1942 Lah. 257. The facts of some of those cases are not exactly similar to the facts of the case before us, except the case in A.I.R. 1942 Lah. 257. In this last case the defendant had filed two receipts A. and B. They were filed with the written statement but not tendered or produced in evidence. When the Court pronounced judgment it was directed that the receipt A should be impounded. The direction was oral, and by mistake the endorsement of impounding was noted on the other receipt, namely, receipt B. When this receipt B was sent to the Collector as provided by Section 38, Stamp Act, the Collector returned the receipt saying that as the right document had not been impounded, no action could be taken by him. Then, long after the decision of the suit, the Subordinate Judge wrote an endorsement on receipt A, and the document was impounded. The matter was then referred to the High Court by the Chief Controlling Revenue Authority, and several questions were propounded, of which question No. 2 was as follows: Can an endorsement of impounding on the back of document A at a date when the case had been finished serve to rectify the original error in endorsement? This question was answered in the negative, and it was observed that the trial having been finished on 30-8-1938, an endorsement on the receipt A made on 3-4-1939, could not rectify the original error, as the Court was clearly functus officio. Dealing with this question Bhide J. observed as follows: It must be held that the document was impounded long after the Court had become functus officio. There is ample authority for the proposition that a Court has no power to impound a document under the Stamp Act after it has become functus officio. As at present advised, I am not prepared to differ from the decisions referred to above, which clearly show that the Court could not impound the documents after it had become functus officio.

(3.) The rule is, therefore, made absolute, and the order of the learned Munsif impounding the documents and directing the petitioners to pay duty and penalty is set aside. There will be no order for costs of the hearing of this application. Agarwala Ag. C.J.