1. Heard the learned counsel for the petitioners.

2. The petitioners-defendants are before this Court being aggrieved by the order impugned at Annexure-A to the writ petition. The defendants have preferred I.A.No.6 under Sections 33 and 34 of the Karnataka Stamp Act, 1957 (hereinafter referred to as ‘the Act’ for short) seeking to impound Exs.P12 and 13. The Court below vide impugned order dated 27.07.2017 has been pleased to reject the same on the premise that though they are insufficiently stamped, they being already admitted in evidence and marked as Exhibits, the same cannot be impounded.

3. It is contended by the learned counsel for the petitioners that the documents are compulsorily registerable documents and are to be construed as insufficiently stamped on account of the fact that possession came to be delivered under the said documents. The same came to be resisted by the respondent, who is the plaintiff in the Court below.

4. The Court below after considering the respective stand of the parties has been pleased to reject the application by placing reliance on the ruling reported in 2011 (2) KCCR 1478 rendered in the case of Smt. Vijayalakshmi vs. Sri. Nagaraju. This Court has been pleased to hold that an unregistered mortgage deed though insufficiently stamped, once marked, the order admitting cannot be recalled or reviewed. Hence, the Court below placing reliance on the same has concluded that the documents having already been marked, without there being any objections, as Exs.P12 and 13, the order admitting the documents as Exhibits cannot be reviewed or recalled and that the Court below is prohibited from re-opening the same and review its decision to admit the documents.

5. Learned counsel for the petitioners would draw the attention of this Court to the provisions of Sections 33, 34, 35 and 58 of the Act. He would contend that the Court is not powerless to call upon the plaintiff to pay the appropriate duty and penalty in view of the provisions of sub-section (2) of Section 58 of the Act. Section 58 of the Act reads as under:

“58. Revision of certain decisions of Courts regarding the sufficiency of stamps.- (1) When any Court in the exercise of its Civil or Revenue jurisdiction or any Criminal Court in any proceeding under [Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898], makes any order admitting any instrument in evidence as duly stamped or as not requiring a stamp, or upon payment of duty and a penalty under Section 34, the Court to which appeals lie from, or references are made by, such first mentioned Court may, of its own motion or on the application of the [Deputy Commissioner], take such order into consideration.

(2). If such Court, after such consideration, is of the opinion that such instrument should not have been admitted in evidence without the payment of duty and penalty under Section 34, or without the payment of a higher duty and penalty then those paid, it may record a declaration to that effect, and determine the amount of duty with which such instrument is chargable, and may require any person in whose possession or power such instrument then is, to produce the same, and may impound the same when produced.

(3) When any declaration has been recorded under sub-Section (2), the Court recording the same shall send a copy thereof to the [Deputy Commissioner] and, where the instrument to which it relates has been impounded or is otherwise in the possession of such Court, shall also send him such instrument.

(4) The [Deputy Commissioner] may thereupon, notwithstanding anything contained in the order admitting such instrument in evidence, or in any certificate granted under Section 41, or in Section 42, prosecute any person for any offence against the Stamp Law which the [Deputy Commissioner] considers him to have committed in respect of such instrument:

Provided that, -

(a) no such prosecution shall be instituted where the amount (including duty and penalty) which, according to the