Varghese Kalliath, J.

This case comes up before us on a reference made by Krishnamoorthy, J. The reference has occasioned since the learned judge felt that the view expressed in Gopalan v. Chellappan (1988 (2) K.L.T.433) conflicts with the view taken in the decision in Kochunarayanan v. Aravindakshan and another (1974 KLT 301). Obviously for an authoritative pronouncement on the question and to avoid the conflict, our noble and learned brother, Krishnamoorthy, J. thought an excathedra decision by a Division Bench of this court on the question is necessary.

2. The question raised is under the Kerala Stamp Act (Act 17 of 1959), hereinafter referred to as the Act. The short facts are these:

3. In execution of a decree, the judgment debtor produced . He produced it with a petition to receive the same. The decree holder contended that the document cannot be received as it is not properly stamped. The decree directed the judgment-debtor to put the decree holder in possession of the suit property. The appellate court granted time till 1-12-1988 for the judgment debtor to vacate the premises. The execution petition was filed for delivery of the possession of the suit property. The judgment debtor put forward a defence that subsequent to the decree and after surrender of possession of the property, a new agreement of lease was executed by the judgment debtor and that he is holding possession of the property by virtue of that document of lease. He wanted the production of that document, and for that purpose, he filed the petition. This document was found to be not properly stamped.

4. The execution court found that the document is not properly stamped. It held that the proper stamp duty chargeable on the document is Rs.2025/- and impounded the document and directed to pay penalty of Rs.22,255/- This order of the execution court is challenged in this Civil Revision Petition.

5. There is a dispute as regards the correct article of the Act applicable on the basis of the recitals in the document. But, this question is not very seriously pressed before us. The dispute is as to whether the article that is applicable on the basis of the recitals in the document is article 33(v) or article 33(viii). Counsel for revision petitioner does not press for an investigation as to whether article 33(v) or article 33(viii) is applicable on the recitals of the document. It makes not much difference in pay ment of duty, if either of the article is made applicable. We shall quote articles 33(v) and 33(viii) of the Act.

"33. Lease-including an under lease or sub-lease and any agreement to let or sublet- (v) where the lease purports to be for a The same duty as a conveyance (No.21 or term exceeding 20 years but not ex- 22 as the case may be ) for a consideration ceding 30 years:

equal to twice the amount or value of the average annual rent reserved (viii) where the lease does not purport to The same duty as a conveyance (No.21 or be for any definite term:

22 as the case may be ) for a consideration equal to three times the amount or value of the average annual rent which would be paid or reserved for the first ten years if the lease continued so long."

6. The larger question that has to be decided is whether the document is liable to be impounded and whether the order impounding the document under the circumstances unfolded in the case is correct in law. S.33 of the Act deals with examination and impounding of instruments. It provides thus:-"Examination and impounding of instruments: -

(1) Every person having bylaw 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.

(2) For that purpose every such person shall examine every instrument so chargeable and so produced or coming