JUDGMENT
Rajamannar, C.J.
1. In O.S.A. No. 121 of 1952 Govinda Menon and Basheer Ahmed Sayeed, JJ., passed an order on 28th April,” 1953, directing inter alia the respondent in the appeal, Larla Gopikissen Gokuldass to furnish security in the shape of a guaranty of the Bank of Baroda for the payment of a sum of Rs. 51,550. In. accordance with this order, a personal bond was filed by the said Gokuldass in favour of the Registrar of this Court. The office of this Court raised an objection as to the proper stamp duty leviable on this personal bond. It was contended on behalf of the party that a court-fee of annas eight under Article 6 of the Schedule II of the Court-Fees Act was all that was payable, while it was contended on behalf of the office that the stamp duty under Article 13 of Schedule I-A of the Indian Stamp Act as amended in Madras was payable on the footing thai it would come within the definition of a: bond in Section 2 (5) of the Stamp Act. The office also relied on a judgment of Krishnaswami Nayudu, J., in Application No. 4190 of 1949 in C.S. No. 576 of 1949. In that application, the learned judge held that the proper stamp duty on a personal security bond similar to that with which we are now concerned would be that provided under Article 13 of Schedule I-A of the Indian Stamp Act as amended in Madras together with the court-fee under Article 6 of Schedule II of the Court-Fees Act. As, however, the court-fee under Article 6 of Schedule II of the Court-Fees Act had been remitted by the Government by their order G.O. No. 1732. dated 1st May, 1937 the stamp duty payable under Article 13 was sufficient. The matter came up before Panchapakesa Ayyar, J. He was inclined to sake a view different from that taken by Krishnaswami Nayudu, J. He considered that the attention of the learned Judge was not drawn to the material portion of Article 13 of Schedule I-A of the Stamp Act as amended in Madras. He therefore desired that a Bench should try and dispose of this question as the question occurred frequently.
2. In our opinion, there is not much room for difference of opinion. It is common ground between Mr. V.C. Gopalaratnam, learned Counsel for the party and the learned Government Pleader that the personal bond now in question and similar personal bonds under which immoveable property is not hypothecated would fall within the definition of ” bond ” under Section 2 (5) of the Indian Stamp Act. Article 13 of Schedule I-A of the Stamp Act as amended in Madras, in so far as it is material, runs thus :–
Bond as defined by Section 2 (5) not being a debenture and not being otherwise provided for by this Act or by the Court-Fees Act, 1870.
3. The contention of the learned Counsel for the party is that a bond such as the bond in question is provided for by Article 6 of Schedule II of the Court-Fees Act. That Article is in the following terms:
Bail-bond or other instrument of obligation given in pursuance of an order made by a court, 01: Magistrate under any Section of the Code of Criminal Procedure, 1898, or, the Code of Civil Procedure, 1908. and not otherwise, provided for in this Act.
4. We agree with the learned Counsel for the party that the order passed by Govinda Menon and Basheer Alimed Sayeed, JJ., was an order made under the Code of Civil Procedure. The learned Goyernment Pleader did not contend otherwise. The bond in question has been given in pursuance of an order made by this Court Article 6 of Schedule II of the Court-Fees Act would, therefore, apply. It follows that Article 13 of Schedule I-A of the Indian Stamp Act (Madras) would, not apply because that Article specifically says that it is only if a bond is not otherwise provided for by that Act or by the Court-Fees Act: that the duty is leviable under that Article. Now that we have held that the bond in question is provided for by the Court-Fees Act, the conclusion inevitably follows that duty is not leviable under Article 3. of Schedule I-A of the IndianStamp Act (Madras). If this part of Article 13 had been specially brought to the notice of Krishnaswami Nayudu, J., we have no doubt whatever that he would have, taken the same view we are now taking.
5. The decision of the Full Bench of this Court in Pichamma v. Pedamuneyya 1 fully’ supports the view which we are taking. In that case, a defendant in a Small Cause Suit applied for setting aside an ex park decree passed against him. Along with the application he filed a security bond executed by a surety for the due performance of the decree. The question was what was the proper stamp fee leviable on such a bond? It was held by the Full Bench that as the order setting aside the ex parte decree was an order passed under the Civil Procedure Code and the bond was given in pursuance of an order of the court, it was sufficient if it was stamped under Article 6 of Schedule II of the Court-Fees Act and that it was not necessary that it should be stamped under Article 15 of the Stamp Act, corresponding to Article 13 of Schedule I-A of the Indian Stamp Act (Madras).
6. The ratio decidendi of the Full Bench decision was that the Article of the Stamp Act, corresponding to Article 13 of Schedule I-A of Indian Stamp Act (Madras) does not apply if the Court-Fees Act applies.
7. We hold that the proper duty leviable on the bond in question is eight annas under Article 6 of Schedule II of the Court-Fees Act. Civil Procedure. The learned Goyernment Pleader did not contend otherwise. The bond in question has been given in pursuance of an order made by this Court Article 6 of Schedule II of the Court-Fees Act would, therefore, apply. It follows that Article 13 of Schedule I-A of the Indian Stamp Act (Madras) would, not apply because that Article specifically says that it is only if a bond is not otherwise provided for by that Act or by the Court-Fees Act: that the duty is leviable under that Article. Now that we have held that the bond in question is provided for by the Court-Fees Act, the conclusion inevitably follows that duty is not leviable under Article 3. of Schedule I-A of the Indian- Stamp Act (Madras). If this part of Article 13 had been specially brought to the notice of Krishnaswami Nayudu, J., we have no doubt whatever that he would have, taken the same view we are now taking.
8. The decision of the Full Bench of this Court in Pichamma v. Pedamuneyya (1934) 68 M.L.J. 466 : I.L.R. 58 Mad. 687 (F.B.) fully supports the view which we are taking. In that case, a defendant in a Small Cause Suit applied for setting aside an ex park decree passed against him. Along with the application he filed a security bond executed by a surety for the due performance of the decree. The question was what was the proper stamp fee leviable on such a bond ? It was held by the Full Bench that as the order setting aside the ex parte decree was an order passed under the Civil Procedure Code and the bond was given in pursuance of an order of the court, it was sufficient if it was stamped under Article 6 of Schedule II of the Court-Fees Act and that it was not necessary that it should be stamped under Article 15 of the Stamp Act, corresponding to Article 13 of Schedule I-A of the Indian Stamp Act (Madras).
9. The ratio decidendi of the Full Bench decision was that the Article of the Stamp Act, corresponding to Article 13 of Schedule I-A of Indian Stamp Act (Madras) does not apply if the Court-Fees Act applies.
10. We hold that the proper duty leviable on the bond in question is eight annas under Article 6 of Schedule II of the Court-Fees Act.