Jainandan Singh vs Krishnandan Singh and Others

Jamuar, J.—The petitioner had filed a title suit for partition of certain joint family properties, being partition Suit No. 162 of 1949, in the Court of the Subordinate Judge of Darbhanga. The suit was decreed on compromise. Thereafter the petitioner was required to file non-judicial stamp worth Rs. 660 for the preparation of the final decree in the suit.

The petitioner''s case is that he sent Rs. 660 to his karpardaz for purchasing the non-judicial stamp from the Collectorate, but the karpardaz instead of purchasing non-judicial stamp of the value of Rs. 660 purchased judicial stamp by mistake and it was this stamp which was filed by him in Court. The petitioner alleges that when he detected the mistake he filed an application in the Court of the Subordinate Judge for the grant of a certificate for refund of the stamp filed by him by mistake, but the application was rejected by the Subordinate Judge on the 16th of March, 1950. It is against this order of rejection that the present application is directed and it is prayed that the Subordinate Judge may be directed to issue a certificate in the particular circumstances of the case for the refund of Rs. 660.

The learned Subordinate Judge based his order of rejection on a case reported in ''RAFIUDDIN v. LATIF AHMAD'', 14 Cal W N 1101. In my opinion, that case has no application to the facts of the present case. In the first place, the decision in that case was based upon a decision in a case reported in ''Ref. u/s 57 of Act 2 of 1899'' 23 All 213, which decision was disapproved by their Lordships of the Judicial Committee in ''MA PWA MAY v. S.R.M.M.A. CHETTYAR FIRM'', 56 Ind App 379 (P C). Secondly, in the Calcutta case the stamp filed had been used up, whereas in, the present case before us the stamp is still lying unused.

In the circumstances, I am of opinion that the Court below should have exercised its inherent jurisdiction u/s 151 of the Code of Civil Procedure. It having failed to exercise that jurisdiction, it is a fit case in which we should interfere in our revisional jurisdiction. I would accordingly set aside the

order of the Court below and allow the application for the refund. The learned Subordinate Judge is accordingly directed to issue the necessary certificate to enable the petitioner to get the refund.

The result is that this application is allowed, but without costs.

Rai, J.

I agree.