JAGAT NARAYAN, J.—This is a revision application by the defendant against an order of the Civil Judge, Bikaner, returning a promissory note to the plaintiff for getting it certified by the Collector to be duly stamped under sec. 37 of the Stamp Act read with rule 59 of the Rajasthan Stamp Rules 1955.

2. The document in question is a promissory note for Rs. 5000/- executed on 12-8-61. Under Art.49 of the Stamp Act the stamp duty payable on it is .25 Naye Paise. The promissory note is however stamped with four adhesive stamps of 10 Naye Paise inscribed for use for revenue.

3. The defendant took an objection that the promissory note should have been stamped with one revenue stamp of. 25 Naye Paise and as this was not done it is not duly stamped and is inadmissible in evidence. The trial court agreed with the defendant that the promissory note was not duly stamped on this account but was of the opinion that the defect could be cured by obtaining a certificate of the Collector under sec.37 of the Stamp Act. He accordingly ordered the return of the promissory note to the plaintiff for obtaining such a certificate.

4. Against the above order the present revision application has been filed. It is contended that a document of the nature referred to in proviso (a) to sec. 35 if not duly stamped cannot be made admissible in evidence by obtaining a certificate as provided under sec.37 of the Stamp Act. Reliance is placed on the decision of a learned Single Judge of the Andhra Pradesh High Court in N.D. Erranna V. Modappa (1).

5. The learned counsel for the respondent relied on the following decisions in which a contrary view was taken: Tukaram vs. Sonaji (2), Ranjitsingh vs. Behramji (3) Hiving heard the learned counsel for the parties I am of the opinion that the view taken in the Andhra Pradesh case is correct. The relevant part of sec.35 runs as follows:—

"35. No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped :—

Provided that—

(a) any such instrument not being an instrument chargeable with a duty of one anna (or half an anna only) or a bill of exchange or promissory note, shall, subject to all just exceptions, be admitted in evidence on payment of the duty with which the same is chargeable, or in the case of an instrument insufficiently stamped, of the amount required to make up such duty together with a penalty of five rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion; ... ... ... ..."

If a document bears a stamp of improper description then it is not duly stamped. Further if such document happens to be an instrument chargeable with a duty not exceeding 10 Naye Paise only or is a bill of exchange or promissory note and it is not duly stamped then under sec. 35 read with proviso (a) it cannot be admitted in evidence for any purpose. It stands to reason that such a document cannot be certified to be duly stamped under sec. 37 of the Stamp Act.

6. The only defect which can be cured under the above section is the use of a stamp of improper description. In the present case however a stamp of proper description has been used and the question of application of sec. 37 does not arise at all.

7. Rule 3 of the Rajasthan Stamp Rules prescribes the use of two descriptions of stamps namely impressed stamps and adhesive stamps.

8. Rule 6 of the Rajasthan Stamp Rules runs as follows:—

"6. Promissory note or bills of exchange.—A promissory note or bill of exchange shall except as provided by sec. 11 or by rules 14 and 19 be written on paper on which a stamp of the proper value, with or without the word "hundi", has been engraved or embossed.

9. From the above rule it is clear that a provision of law is that a promis

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