Judgment :- 1. The 1st defendant in O.S. No. 7 of 1955 on the file of the Sub-Court at Attingal is the petitioner. His complaint is that the learned subordinate judge has recorded his finding on issue No. 4 in the case without exercising the jurisdiction vested in the court and considering the matter on its merits. The suit is based on two Hundis, the admissibility of which was challenged by the 1st defendant on the ground that the two Hundis are not properly stamped. On this contention issue No. 4 was framed as follows: "Have the documents relied on by the plaintiffs been properly stamped?" This issue was heard as a preliminary issue and the learned judge recorded a finding against the defendant. The only reason stated in support of that finding is that the two documents in question had been marked as Exts. A and B in connection with an interlocutory application for attachment before judgment of certain properties belonging to the defendant and since the documents had been allowed to go in without any demur on the part of the defendant the admissibility of these documents in evidence cannot now be called in question by the defendant. In support this position reliance is also placed on S.36 of the Indian Stamp Act which the learned judge has stated to be the same as S.38 of the Travancore-Cochin Stamp Act. 2. Before going into the question raised on behalf of the petitioner, it may be stated at the outset that the learned judge has gone wrong in his assumption that S.36 of the Indian Stamp Act is the same as S.38 of the Travancore-Cochin Stamp Act. As a matter of fact there is substantial difference in the wording employed in the two Sections. As a matter of fact there is substantial difference in the wording employed in the two Sections. S.36 of the Indian Act runs as follows: "Where an instrument has been admitted in evidence, such admission shall not, except as provided in S.61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped." S. 38 of the Travancore-Cochin Stamp Act is not so comprehensive in its scope as is clear from its wording which is as follows: "Where an instrument has been admitted in evidence or registered, such admission or registration shall not, except as provided in S.63 and 64, be called in question on the ground that the instrument has not been duly stamped." 3. It is significant to note that the expression 'at any stage of the same suit or proceeding' as occurring in S.36 of the Indian Act does not find a place in S.38 of the Travancore-Cochin Act. It has also to be remembered that the bar imposed by these sections comes into play only if the document challenged to be improperly stamped has been admitted in evidence. The manner in which a document should be admitted in evidence has been prescribed by the provisions contained in O. XIII, of the Code of Civil Procedure. R.3 of O. XIII states that the Court may, at any stage of the suit, reject any document which it considers irrelevant or otherwise inadmissible, recording the grounds of such rejection. R.4, sub-r. (i) states that subject to the provisions of the next following sub-rule, there shall be endorsed on every document which has been admitted in evidence in the suit the following particulars, namely:- (a) the number and title of the suit, (b) the name of the person producing the document, (c) the date on which it was produced and (d) a statement of its having been so admitted; and the endorsement shall be signed or initialled by the Judge. In Sadik Husain Khan v. Hashim Ali Khan (A.I.R. 1916 P.C. 27) Their Lordships of the Judicial Committee strongly deprecated the failure of the Presiding Judge to observe the provisions of R.4 of O. XIII and stated that they would refuse to read or permit to be read or used any document not endorsed in the manner required. In Sadik Husain Khan v. Hashim Ali Khan (A.I.R. 1916 P.C. 27) Their Lordships of the Judicial Committee strongly deprecated the failure of the Presiding Judge to observe the provisions of R.4 of O. XIII and stated that they would refuse to read or permit to be read or used any document not endorsed in the manner required. All that was done in the present instance was to mark the two documents on which the suit is based as Exts. A and B for the purpose of the interlocutory matter concerning the question of attachment before judgment. By such marking alone of the documents in an interlocutory proceeding it cannot be said that the documents have been admitted in evidence in the suit. The admissibility of the documents in evidence had already been objected to by the 1st defendant in his written statement and there is nothing on record to show that the court had applied its mind to that objection when the documents were marked as Exts. A and B in connection with the application for attachment before judgment. It is therefore obvious that the marking was done merely for the purpose of facilitating reference to the documents while disposing of the application for attachment and that it was not meant to be a decision in favour of the admissibility of the documents in evidence. In Venkanna v. Parasuram (A.I.R. 1929 Mad. 522) the view taken has gone to the extent of holding that a document, although endorsed according to O. XIII, R.4, cannot be deemed to be admitted in evidence, if the endorsement is made without the judge having applied his mind to its admissibility, and so can be rejected in spite of such endorsement. The decision in Prakasam v. Nagabushanam (A.I.R. 1938 Mad. 938) does not really go counter to this proposition. All that is pointed out in that case is that the real question for determination will be whether the document has been admitted in evidence and that if it has been so admitted its admissibility cannot be questioned at a later stage in view of the clear mandate to the contrary as contained in S.38 of the Stamp Act. It was also pointed out that the section does not explicitly say that there must be a judicial determination of the question of the admissibility of the documents before it is formally admitted. It was also pointed out that the section does not explicitly say that there must be a judicial determination of the question of the admissibility of the documents before it is formally admitted. At the same time it is pointed out that the admission of the document in evidence must be in accordance with the provisions contained in the Code of Civil Procedure. It is thus obvious that before the document is admitted in the manner prescribed in the Code, the Presiding Judge must necessarily apply his mind to the admissibility of the document. As already pointed out there has in fact been no admission of the impugned documents in evidence in the suit, but they have been merely marked for reference for the purpose of an interlocutory application. Such marking can in no sense be said to be the same as admission of the documents in evidence as contemplated by O. XIII R.4 C.P.C. If there has been such an admission of the documents in evidence, the bar imposed by S.38 of the Travancore-Cochin Stamp Act would have stood in the way of the defendant questioning the admissibility of these documents at a later stage. 4. The failure of the defendant to object to the marking of these documents as Exts. A and B in connection with the application for attachment before judgment cannot preclude him from pressing his objection as to the admissibility of these documents in evidence. He had already raised that objection in his written statement and a specific issue had also been raised in respect of that question. He was not bound to reiterate the same objection even at the stage of interlocutory proceeding. When a specific issue had been raised on his objection to the admissibility of these documents he is entitled to get a definite finding on that question after a judicial consideration of the matter by the court. A similar question arose for consideration in Sri Yerri Swami v. Vannurappa (A.I.R. 1949 Mad. When a specific issue had been raised on his objection to the admissibility of these documents he is entitled to get a definite finding on that question after a judicial consideration of the matter by the court. A similar question arose for consideration in Sri Yerri Swami v. Vannurappa (A.I.R. 1949 Mad. 300) and there it was held that: "Where the defendant had raised a specific plea in his written statement that the suit promissory notes were inadmissible being insufficiently stamped and a specific issue on the question was framed and the documents were marked at the preliminary trial without disposing of the issue there is no necessity for the defendants to raise the objections at each time to the admissibility of these documents." 5. It was also held that in such a case there is no admission of the documents in evidence within the meaning of O. XIII R.4, C.P.C. and S.36 of the Stamp Act, so as to preclude the defendants from raising the question that the documents were not properly stamped. The position in the present case is almost identical. Issue No. 4 was already there in the case relating to the admissibility of the plaint documents. Instead of recording a proper finding on that issue after a judicial consideration of the matters involved in it what the learned judge has done was to short circuit the question by placing an undue and unjustifiable importance on the fact that the documents in question have been marked as Exts. A and B in connection with the application for attachment before judgment. In thus refusing to consider issue No. 4 on its merits, the learned judge has refused to exercise the jurisdiction vested in him by law, and for that reason his order has to be quashed. The objections as to the admissibility of the plaint documents have to be considered on their merits and a proper finding should be recorded on issue No. 4 and for that purpose the case has to be remitted to the lower court. In the result this Revision Petition is allowed and the order of the lower court is set aside. The lower court is directed to dispose of the matter in accordance with law and in the light of the observations made above.