A. SEETARAM REDDY, J.

( 1 ) THE point that falls for determination in this revision is, whether a document which requires to be stamped under S. 35 of the Stamp Act but not stamped, and is marked in evidence, could be refused to be acted upon by the court in view of S. 36 of the Stamp Act.

( 2 ) THE relevant facts in brief which led to this revision are: The respondent-Bank filed a suit against the defendants, petitioners herein, for the recovery of a debt due under an equitable mortgage. During the course of trial when D. W. 1 who is the 1st defendant, was under examination, a document said to be an agreement of partition was got produced through him and the same was marked as Ex. B-2. Thereafter, it was objected to by the learned counsel for the plaintiff on the ground that the document required registration and that, unless stamp duty and penalty was paid, the document is not admissible in evidence. Before commencing cross-examination, the learned counsel again raised the objection to the marking of Ex. B-2. Then the learned counsel for the defendants contended that when once a document was marked and admitted, the question of levying stamp duty and penalty did not arise. The Court, however, rejected the objection by observing that , after the document was marked, the learned counsel for the plaintiff raised the objection regarding the admissibility, and therefore, no stamp duty need be collected as the document was already said to be admitted in evidence. Against that, the plaintiff-respondent preferred C. R. P. No. 3541 of 1977 to this Court. This Court dismissed the revision petition observing as under: "whether the objection was taken at the very time of marking of the document or not, I do not think that the document can be admitted in evidence by the learned Subordinate Judge as it is not properly stamped and no proper penalty is paid by the party tendering it. Regardless of whether the document was marked as an exhibit or not it cannot be received in evidence in view of the express prohibition contained in S. 33 of the Stamp Act. In other words, the payment of the stamp duty and 10 times penalty is a condition precedent for the said document being received in evidence by the Court. This regardless of the question whether the objection was raised at the stage when the document was being marked or not, this document cannot be received in evidence at all before the stamp duty and penalty is paid by the party tendering it as required by S. 35 of the Stamp Act. The question of adequate duty and penalty may be gone into by the learned Principal Subordinate Judge if objection is raised by the revision petitioner herein as to the receiving of that document into evidence. With the above observations, the revision petition is dismissed. "

( 3 ) ONCE again when the case was taken up for trial, the plaintiffs counsel raised the objection that Ex. B-2 document cannot be received in evidence unless and until the stamp duty and penalty is paid. Thereafter on hearing the arguments advanced by both the parties, the learned Subordinate Judge held that Ex. B-2 document cannot be acted upon unless the stamp duty and penalty is paid. The learned Subordinate Judge further observed that though the revision petition has been dismissed (it was) not on merits, but on the technical ground that a revision under S. 115, C. P. C. did not lie, as receiving of a document in the course of evidence cannot be treated as an order by which "any case" can be said to have been decided. On the other hand, the revisional court, the learned Subordinate Judge further observed, clearly held that the document, Ex. B-2 cannot be received in evidence at all before the stamp duty and penalty is paid by the party tendering it as required by S. 35 o the Stamp Act.

( 4 ) THE learned counsel for the petitioner Sri N. V. Ranganathan, raised the following contentions herein: (1) When once the document is admitted in evidence, even if that document requires stamp duty and

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