- (1.) THIS is an application made within one year from the date of the payment for revision of a penalty under sec. 45 of the Indian Stamp Act.
(2.) WE have heard the learned counsel for the parties and have examined the record. The relevant facts of the case are not much in dispute. Balabux Amarchand applicants executed a mortgage deed without possession in favour of the former Ajmer State Government on a nonjudicial stamp of Re. 1/- only and the same was registered by the Sub-Registrar, Ajmer on 24. 7. 54. It appears that subsequent to the registration the Sub-Registrar served a notice upon the applicants oh 11. 10. 54 to show cause as to why a penalty in respect of deficient stamp duty be not charged from them in respect of the aforesaid mortgage deed. It does not appear from the record as to whether any objections were raised by the applicants or not before the Sub-Registrar and if so with what effect. The Sub-Registrar, however, "impounded" the document and forwarded the same to the Collector under S. 38 (2) of the Indian Stamp Act for necessary action. The Collector by his order dated 15. 1. 55 held that there was a deficiency of Rs. 596/8/-in the stamp duty inasmuch as the mortgage being for Rs. 1,19,041 should have been on a stamp p»per of Rs. 597/8/- and as it was written on 1 rupee stamp only the deficiency of Rs. 596/8/-along with an equal amount as penalty should be paid by the applicants. This order was passed by the back of the applicants and hence they applied to the Collector for a review of the same. This review petition was rejected on 25. 4. 55 on the ground that the law provided no review. The applicants thereafter paid the entire amount of deficiency and penalty on 27. 5. 55 and applied for its refund on 15. 7. 55. Before any final decision could be taken in the matter the State of Ajmer merged with that of Rajasthan and hence this case has come to the Board which is the Chief Controlling Revenue Authority for the State under the Indian Stamp Act. The circumstances that have been stated above make it clear that the Sub-Registrar was not justified in impounding the document or moving the Collector under sec. 38 (2) of the Indian Stamp Act. Sec. 38 lays down that when the person impounding an instrument under sec. 33 as by law or consent of parties authority to receive evidence and admits of such instrument in evidence upon payment of a penalty as provided by sec. 35 or of duty as provided by sec. 37 he shall send to the Collector an authenticated copy of such instrument. In every other case the person impounding an instrument shall send' it in original to the Collector. Sec. 33 (1) runs as follows :- Examination and impounding of instrument.- Every person having by law or consent of parties authority to receive evidence, and every person incharge of a public office, except an officer of Police, before whom any instrument, chargeable, in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same. This provision relates to the examination and impounding of instruments not duly stamped. Under this section persons having by law or consent of parties authority to receive evidence and public officers are required to examine documents that are produced or which come before them in the performance of their functions and to impound them if in their opinion they are not duly stamped. A court has no power to impound a document after the case has been disposed of and it has become functus officio. This principle also applies to the other persons mentioned in sec. 33 and thus where a document which is not duly stamped has been registered and returned to the party it is not subsequently open to the Registrar to send for the deed and impound it. We may refer to A. I. R. 1932 Lahore 495. In that case a Registrar required the production of a document on the ground that it was not duly stamped after it had been registered and delivered to the party concerned and a question arose as to whether the document was produced or came before the Registrar in the performance of his functions so as to entitle him to make a reference to the Collector under sec. 33 Indian Stamp Act. The Special Bench which heard the case observed as below: - "it is not safe for the purposes of sec. 33, Stamp Act that the document should somehow be produced or come before a public officer. It is essential that it should be produced or come before him in the performance of his functions and a mere production in compliance with an illegal demand will not confer authority on him to take action under Sec. 33" A similar view was expressed by a Special Bench of the Rajasthan High Court in A. I. R. 1958 Raj. 291, In that case the original document had been taken away after registration and what the Inspector saw was the copy of the document in the Register of the Registrar. It was held that the document not having been impounded either by the Collector himself or by any other officer and sent to him under sec. 38 the occasion for the demand of any deficit duty and penalty could not arise. In the present case it will be found that the document in question was registered on 24. 7. 54. It is not clear as to whether the document was taken away by the applicants after registration or not. Even if it be presumed for a moment that it was not so taken away, it would make no difference for the obvious reason that after the Sub-Registrar had registered the document he became functus officio in the matter and as such he had no authority left to take action under sec. 35 or 38 of the Act. We, therefore, allow this application and direct that deficient duty and penalty amounting to Rs. 1,193/- be refunded to the applicants under sec. 34 of the Indian Stamp Act. .;