PATHAK, J. - (1.) I agree with my brother Parekh that the questions must be answered in the negative.
(2.) THE question is whether the instrument before us is a power of attorney given for consideration and authorising the attorney to sell immovable property. If it is so, the proper stamp duty is the same as a conveyance for the amount of the consideration. There is no dispute that the instrument is a power of attorney authorising the Bank as attorney to sell immovable property. The question is whether the power of attorney has been given for consideration. The executants say that there is no consideration, while the Revenue contends that the instrument has been given for consideration and that the consideration is the amount of the two decrees.
(3.) THERE was a compromise between the Bank and the executants in the suits filed by the Bank, and the power of attorney was executed and given to the Bank in compliance with the terms of the compromise. Under the instrument, the Bank has been authorised to sell the property by public auction for payment of the decretal amount, to grant a receipt for the purchase money paid by the auction purchaser, to appropriate from the sale proceeds so received a sum representing the total decretal amount and to pay the balance to the executants. There is nothing to suggest, either expressly or by necessary implication, that by merely executing and delivering the power of attorney to the Bank the liability of the executants under the decrees stood discharged. On the contrary, the discharge of the decrees is contemplated only upon appropriation of the decretal amount by the Bank out of the sale proceeds. Had there been a condition in the instrument that the power conferred by the instrument upon the Bank to sell the immoveable property and appropriate the sale proceeds would amount to a complete discharge of the liability under the decrees, it may have been possible to say that the power of attorney was given for consideration. I find no such provision, either in terms or by necessary inference. It will also be apparent from Clause (5) of the instrument that the due payment of the instalments and interest under the two decrees is a necessary condition before the amount is appropriated from the sale proceeds towards the liability under the decrees. That it seems to me, reinforces the conclusion that the mere execution and grant of the power of attorney to the Bank does not amount to a discharge of the liability of the executants under the two decrees.;