The production of a document in obedience to the order of the Court is a production within the meaning of Sub-section (1) of Sec.33 of the Indian Stamp Act.

Kanhaiya Singh, J.

1. The only question of law canvassed in this case is whether the production of an unstamped instrument in obedience to the order of the Court is production within the meaning of Sub-section (1) of Sec.33 of the Indian Stamp Act. The facts of this case lie in short compass and may be briefly stated, One Sheoshankar Pandey obtained two money decrees against the opposite party judgment-debtors, and for realisation of the decrees he levied two executions, being Execution Cases 1191 and 1192, both of 1951,

On 15-5-1952 he assigned the two decrees to Chandrama Singh, the petitioner before this Court, by a registered deed of assignment which he described as Transfernama. On the strength of this assignment the petitioner presented on 21-4-1955 an application for execution in respect of one of the decrees in the Court of the 1st Additional Munsif Arrah, which was numbered as Title Execution Case 717 of 1955. In this application the petitioner alleged that the decree has been transferred to him by the original decree-holder, Sheoshankar Pandey, and prayed for permission to execute the decree.

On 18-6-1955 the executing Court asked the petitioner decree-holder to produce the registered deed of assignment, and the same was filed on 30-6-1955. The execution proceeded and notices as required by Rule 16 of Order XXI of the Code of Civil Procedure were issued. On 29-2-1956 the opposite party, it appears, raised an objection that the deed of assignment was insufficiently stamped, whereupon the Court directed the Sheristedar to examine and check the document and to report whether stamp duty and penalty were leviable. The Sheristedar submitted this report, and on the strength of it the following order was passed on 1-3-1856 : "Sheristadars report seen. D. Hr (O.P.) to deposit Rs. 82/8/- as duty and 825/- as penalty by the date fixed. Inform." (The next date fixed was 2-3-1956).

The petitioner has come up in revision against this order.

2 Learned counsel for the petitioner put forward the argument that the lower Court had no power to impound this document and demand payment of stamp duty and penalty, and its order was wholly without jurisdiction. He submitted that for an execution under Order 21, Rule 16 of the Code the production of the deed of assignment was not necessary and further that production, as envisaged by Sec.33(1) of the Indian Stamp Act is voluntary production, and a production under compulsion of the Courts order is not a production in law and, therefore, the deed of assignment, though produced in Court, did not come within the purview of Sec.33 (1) of the Act. This contention is wholly untenable and cannot be accepted as correct. Sub-section (1.) of Sec.33 provides as follows :

"Every person having by law or consent of parties authority to receive evidence, and every person in charge of a public office, except an officer of police before whom any instrument, chargeable, in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that, such instrument is not duly stamped, impound the same."

This section empowers certain authorities to impound documents not duly stamped in the circumstances set forth in the section and to admit it in evidence under Sec.35 of the Stamp Act on payment of the excess duty and penalty. It will appear that to attract the provisions of the said sub-section three conditions must be fulfilled : (1) the authority empowered to impound a document must be the authority specified therein, (2) the instrument in question is not stamped according to the Stamp Act and (3) the instrument "is produced or comes in the performance of his functions".

This section does not specify how the document is to be produced. There is no doubt that the production of a document under compulsion is not a-production as envisaged in Sub-section (1) of Sec.33. At the same time it would be wrong to restrict the operation of Sec.33(1) to voluntary production