( 1 ) THE petitioner herein was the plaintiff. He had instituted the suit against the defendants ie. , the respondents herein, in O. S. No. 301 of 1989 which is pending on the file of the Principal Senior Civil Judge, Tirupati. The said suit was filed for specific performance of the agreement of sale dated 24-4-1989 and also to put the plaintiff in possession of the suit schedule property.

( 2 ) ON completion of formalities, the evidence commenced. The plaintiff produced the document i. e. , agreement of sale, which was exhibited in the evidence. After few days, the plaintiff filed an application i. e. , I. A. No. 1332/97 under Section 38 of the Indian Stamp Act, 1899 with a prayer to send the agreement of sale to the Revenue Divisional Officer, Tirupati for levying and collecting stamp duty as it was inadequately stamped. The defendants-respondents herein filed their counter and resisted LA. No. 1332/97. The learned Judge heard the matter on merits and refused to send the agreement of sale to the Revenue Divisional Officer. Aggrieved by the said order, the present revision has been filed.

( 3 ) THE learned Counsel Mr. A. T. M. Rangaramanujam appearing on behalf of the petitioner herein submitted at the Bar that the said application was made so as to avoid the difficulties which may arise at the time of execution of the decree. It was further submitted by the learned Counsel at the Bar that once the document is exhibited in evidence, the respondents i. e. , the original defendants, did not raise any objection for exhibiting the document. It was further contended by the learned Counsel for the petitioner that when the plaintiff realised that the agreement of sale on which the suit is based was inadequately stamped, the plaintiff himself filed I. A. No. 1332/97 requesting the Court to send the document for impounding and collecting the deficit stamp. Under these circumstances, the learned Counsel for the petitioner submitted that the order impugned has to be set aside directing the Court to send the document for impounding and collecting the deficit stamp.

( 4 ) THE learned Counsel for the petitioner herein invited my attention to Section 38 of the Indian Stamp Act, 1899. Section 38 of the said Act reads as under: (1) When the person impounding an instrument under Section 33 has, by law or consent of parties authority to receive evidence and admits such instrument, in evidence upon payment of a penalty as provided by Section 35 or of duty as provided by Section 37, he shall send to the Collector, an authenticated copy of such instrument, together with a certificate in writing, stating the amount of duty and penalty levied in respect thereof, and shall send such amount to the Collector, or to such person as he may appoint in this behalf. (2) In every other case, the person so impounding an instrument shall send it in original to the Collector. "

( 5 ) BY reading the aforesaid section,it is evident that while admitting thedocument in evidence if it comes to the knowledge of the person (Judge) that the instrument has been insufficiently stamped, then the Judge has to follow the procedure as contemplated under Section 38 of the Indian Stamp Act.

( 6 ) SECTION 41 of the Indian Stamp Act provides the cases when the instruments unduly stamped by accident. Section 41 of the said Act reads as under:"if any instrument chargeable with a duty and not duly stamped, not being an instrument chargeable with a duty of twenty paise only or a mortgage of a crop (Article 36 (a) of Schedule-I-A) chargeable under clause (aa) or (bb) of Section 3 with a duty of forty paise or a bill of exchange or promissory note is produced by any person of his own motion before the Collector within one year from the date of its execution or first execution and such person brings to the notice of the Collector the fact that such instrument is not duly stamped and offers to pay to the Collector the amount of the proper duty, or the amount required to mak