A suit on a debt can be maintained even if the promissory note given as collateral security is inadmissible in evidence due to insufficient stamping.

GOPAL RAO EKBOTE, J.

( 1 ) THIS revision petition Is, directed against the judgment and decree of the City Small Causes Court, Hyderabad, dated 22-2-61.

( 2 ) THE facts relevant for the purpose of appreciating the contentions raised in this revision petition are that the plaintiff instituted a suit for Rs. 214-35 np. alleging inter alia that the defendant borrowed Rs. 300. 00 as loan without Interest from the plaintiff on 26-12-56. The defendant executed the promissory note as collateral security and also executed a receipt for Rs. 300. 00. The defendant had paid Rs. 100. 00; the suit therefore was laid for the balance. The defendant denied the execution of the promissory note. He raised a plea that as the suit promissory note was not sufficiently stamped, it is not admissible In evidence, He also stated that as the suit is based on the promissory note it is liable to be dismissed.

( 3 ) THE learned Judge without recording the evidence, but after hearing the parties dismissed the suit folding that the suit promissory note is insufficiently stamped and therefore Inadmissible in evidence and although the promissory note was used In evidence at the ex parte trial when the ex-parte decree is set aside, it is open to the defendant to object to the admissiblllty of the promissory note. The learned judge also came to the conclusion that as the suit Is based on the promissory note which Is Inadmissible, it Is liable to be dismissed, it is this view of the learned Judge of the City Small Causes Court which Is assailed before mo to this revision petition.

( 4 ) IT is contended by Mr. Upendralal Waghray, learned Advocate for the petitioner, that the suit promissory note although insufficiently stamped and inadmissible in evidence on that account was used in evidence in the ex-parte trial and that the question of admissibllity therefore does not arise at a later stage in the same suit.

( 5 ) IN order to appreciate the above contention it it necessary to look into the language of Section 36 of the Indian Stamp Act That Section is in the following terms;"where an instrument has been admitted in evidence, such admission shall not, except as provided in Section 61 be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped. "it is plain from a reading of the section that in order that the provisions of that section may apply to any case the instrument must have been admitted in evidence. The expression "admitted in evidence" means that the document must have been let in as part of the evidence. The contention of Mr. Waghray is that the promissory note was admitted in evidence as it was let in as part of the evidence in the ex-parte trial. I do not know how that argument can be effective in the face of a clear decision of the Madras High Court which was followed recently by this Court. In Solamalai Mudaliar v. Vadamali Muthiran, 23 Mad LJ 273 Sundara Aiyar J. , observed as follows:-"section 36 of the Stamp Act lays down rule pro-venting only the exclusion of what already Is evidence in the proceedings. But if certain proceedings terminated and other proceedings where the documents would not be regarded as being in evidence already, re-commence e. g. , where the prior exparte proceedings were set aside and new proceedings begin, Section 36 would have no application. After the ex-parte proceedings are once set aside subsequent proceedings are in substance different, though the suit is technically the same. "this decision was considered by jagamohan Reddy, 1. in Munipalli Raje Swara Rao v. Sela Veerayya, in S. A. No. 871 of 1958, DA 1-2-1962 (Andhpra), and was approved. In view of these clear decisions on the point It becomes clear that although generally once the Instrument is admitted in evidence no objection to its admis-siblity can be raised at any stage of the same suit or proceeding. Where, however, a promissory note is admitted in evidence in an ex parte trial, its admissibi

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