In Re: The District Munsif of Tiruvellore

From

THE DISTRICT MUNSIF,

Tiruvellore.

To,

THE REGISTRAE,

High Court, Madras.

Sir,

I have the honor to refer u/s 60 of Act II of 1899 for the decision of the High Court the proper stamp duty leviable on the document forwarded

herewith.

The document was executed by the 2nd defendant in O. S. 38 of 1909 on the file of the District Court of Chingleput and two sureties under

Rule 7, page 31 of the Civil Courts guide, for the production when called for of the attached moveables left in their custody by an Amin of this

Court. The warrant was sent to this Court for execution and was entrusted by my Deputy Nazir to the Amin. After attachment he obtained this

bond as usual in this Court on axme rupee stamp paper (general) being the advalorem stamp on the value of the attached cattle. When the same

was forwarded to the District Court it was returned to this Court with an order that a fresh bond should be taken on a paper with 8 annas Court

fees label attached toitas required by Article 5 Schedule II of the Court Fees Act. I submitted that the bond was correotly stamped under Article

57 Schedule I of Act II of 1899 and that the Court fees Act was not applicable. Thereupon a further proceeding was received with the bond

requiring a fresh bond and a direction that the practice of this Court should be corrected.

As I held judicially elsewhere when such a bond was sought to be enforced that bonds of this character should bear ad valorem general stamp

and not 8 annas Court fee label and as the different opinion of the District Judge has thrown doubt on the correctness of my view I beg to refer the

question for the decision of the High Court.

Rule 7 of the Civil Courts guide was framed u/s 269 of the old C.P.C. and continue in force u/s 157 of the present C.P.C. It will be treated as

framed under the present Sections 122 and 128b. It will therefore be enforceable by execution process u/s 145 but it has to be determined

whether the document is one excluded from the purview of the Act II of 1899. Article 15 of that Act provides for ""Bond (as defined by Section

2(i) not being a debenture (No. 27) and not being otherwise provided for by this Act or by the Court Fees Act VII of 1870."" Among the bonds

for which special provision is made are ""Indemnity bonds"" (24) and security bonds (L7). The Court Fees Act provides for Bail bond or other

instrument of obligation in pursuance of an order made by a Court or Magistrate under any section of the Code of Criminal Procedure Code 1882

or the Code of Civil Procedure."" An order to attach cattle implied an order to obtain security bond as per rules framed under proper authority but

it may be a question whether such an instrument could be described as executed ""under any section of the Civil Procedure Code."" Assuming

however that it was so I am of Opinion that the bond in question does not wholly fall under this article and requires to be stamped under the Stamp

Act.

Under Rule 7 of the Civil Courts guide (Page 31) cattle may be left in the charge of a judgment debtor if he "" enters into a bond in the form given

in Schedule A appended to these rules with one or more sufficient sureties for its production when called for."" The 2nd defendant was therefore the

principal and his 2 co-executents were his sureties. Section 19 Clause 15 of the Court Fees Act exempts from Court fees "" Bail bonds in Criminal

cases, recognisances to prosecute or give evidence and recognizances for personal appearance or otherwise even if an undertaking to produce the

person of another be exempt as undertaking to produce material objects, documents and so forth would perhaps not be exempt.

Article 57 of the Stamp Act provides for duty on security bonds or mortgage deeds "" executed by way of security for the due execution of an

office or to account for money or other property received by virtue thereof or executed by a surety to secure the due performance of a contract.

The executants of the bond may in certain cases be deemed officers in custody of the attached properties (compare Order 21 Rule 43) but if not

there was certainly a contract and the sureties who joined in the execution of the bond were expressly required as such to join in it and in as far as

their obligation is concerned they fall under that article. It will be observed that there is no proviso in this article that payment under the Court Fees

Act exempted them from liability under this article. The principle in Kulwanta v. Mahabir Prasad ILR (1888) A. 16 Soorjharee Kunwar v.

Ramessur (1866) 5 S.W.R. Mis. 47 would therefore be applicable. In this connection the case of the obligation being charged on Immovable

property may also be referred to. Such instruments are treated as mortgages even though executed under the Civil Procedure Code. The Board of

Revenue has also ruled to the same effect (vide Resolution No. 2273 dated 9th September 1899 Registration Circular No. 11 dated 23-9-1899)

and instruments of that nature are not registered by the Registering Officers unless they are stamped as mortgages. The Legislature did not amend

articles 57 or 34 even when they thought fit to do so in regard to art. 15 Stamp Act and 16 Schedule II of the Court Fees Act, I am therefore of

opinion that a security bond by sureties to see to the production by the decree holder judgment-debtor or claimant as the case may be of attached

moveable entrusted to the former are chargeable under Article 57 and that they are not liable under the Court Fees Act. In this connection I may

also refer to certain other cases under the CPC when the taking of security may be ordered e.g. where there is an attachment of arrest before

judgment (Order 38 Rules 1 and 5) or for costs (Order 25 Rule 1 and Order 45 Rule 7) where execution or stay thereof is ordered (Order 41

Rules 5 and 6 and Order 21 Rule 26) where money is paid out to the guardian of a minor entitled to it (Order 32 Rule 6) and where an arrested

judgment-debtor desires to file an insolvent application (Section 55). In most of these cases security on Immovable property is demanded and

registered bonds are filed bearing ad valorem general stamp.