An execution petition can qualify as an 'instrument' requiring stamp duty under the Kerala Stamp Act, 1959.

1 In CRP. 1045/63, Mr. P. H. Sankaranarayana Iyer, learned counsel for the assignee decree holder, challenges that part of the order of the learned Subordinate Judge of Ernakulam, calling upon his client to pay stamp duty and penalty on the ground that the execution petition, namely E. P. No. 34/1963 filed by his client, is an 'instrument' as that expression is defined in S.2(j) of the Kerala Stamp Act, 1959 (Act 17 of 1959).

2 The appeal A. S. No. 366/64 is by the judgment debtor as against the overruling of his various objections by the learned Judge in the same order, part of which is under attack in C. R. P. 1046/63, already referred to.

3 It will be seen that the original decree holder, who is now no more, obtained a decree for arrears of maintenance as against her husband, the respondent in the revision petition in O. S. No. 30/1959 on the file of the Subordinate Judge's Court, Alleppey. That decree appears to have been transmitted for execution to the Subordinate Judge's Court at Ernakulam, The Original decree holder had filed E. P. No. 261/62 in the transferee court, namely the Subordinate Judge's Court, Ernakulam, on 25-2-1962,

4 The present execution petition viz., EP No. 34/63, was filed on 2-2-1963 both by the original decree holder as well as by the petitioner who is the assignee decree holder. That is no doubt an application under O.21 R.16, C. P. C. The original decree holder died on 11-3-1963; and it is seen that E. P. 261/ 62 itself was dismissed on 10-6-1963.

5 Coming to E. P. 34/1963, it was filed on 2-2-1963. The learned Subordinate Judge passed an order on that application on 4-2-1963, to call it on 21-2-1963. It was later on adjourned on 10-6-1963, to 25-6-1963 for objections of the judgement debtor. As I mentioned already E. P. 261/62 was dismissed on 10-6-63, on which date probably the judgment debtor got notice of E. P. 34/63 and therefore it was adjourned for his objections.

6 Objections were filed by the judgment debtor on various grounds, namely that E. P. 34/63 must be considered to be an application filed under O.21 R.16, CPC, in which case the application must have been filed not in the transferee court, but in the court which passed the decree, viz. the Subordinate Judge's Court, Alleppey. The second objection that appears to have been taken by the judgment debtor is that it is in and by E. P. 34/63 as the recitals therein would show, that the original decree holder has purported to transfer all her rights in the decree in favour of the assignee, and therefore it is an 'instrument' which requires stamp duty; and inasmuch as stamp duly has not been paid, no action could be taken on the basis of that execution application.

7 The learned Subordinate Judge has overruled the various other objections raised by the judgement debtor, but has sustained the objection based upon the Stamp Act; and has ultimately, after referring to the recitals In E. P. 34/63 and having due regard to the definition of the expression 'instrument' contained in S.2(j) of the Kerala Stamp Act, levied stamp duty and penalty together, in the sum of Rs. 412-50 p. That is really based upon the value of the decree which was sought to be executed. It is seen that the revision petitioner did not pay the stamp duty and penalty, and therefore the execution petition was dismissed.

8 In C. R. P. 1046/63 Mr. P. H. Sankaranarayana Iyer learned counsel for the petitioner, challenges the direction of the learned Subordinate Judge calling upon his client to pay stamp duty and penalty. According to the learned counsel E. P. 34/1963, the application filed by the petitioner, along with the original decree holder, is a simple application for execution of the decree; and inasmuch as it has been filed in the Subordinate Judge's Court, the proper court fee for that application, namely Rs. 2.50 as required by the Kerala Court Fees and Suits Valuation Act, 1959 (Act 10 of 1960), Schedule.2 Art.2, item (v)(ii), has been paid inasmuch as it was an application