Judgment :- 1. The petitioner in this original petition was the plaintiff in O. S. No. 27 of 1971 on the file of the Subordinate Judge's Court, Kottayam. The grievance of the petitioner is that he is asked to pay Rs. 8283/-by way of stamp duty and penalty as per Ext. R-1 communication of the 2nd respondent-District Collector, Kottayam. The question that arises for consideration in this original petition is whether after admitting an instrument in evidence the Civil Court can impound the same and request the District Collector to collect the stamp duty and penalty imposed upon the same. 2. The petitioner filed the above suit for a declaration that he is the owner of the lorry K. L. E. 1351 and for recovery of possession of the same from the defendant. The suit was decreed Against the judgment and decree of the trial court the appeal filed by the defendant was also dismissed. It seems a second appeal is pending before this Court In the above suit the defendant produced before the 1st respondent one sale letter written by the original owner of the lorry in favour of the petitioner. When the petitioner was examined, the defendant got it marked as Ext B 1. The court allowed it to be marked and accepted it in evidence without any objection. From Ext. P-1 B-diary produced along with the original petition it is seen that on 19-7-1972 Exts A-1 to A-3 and B-1 to B-7 were marked. The suit was decreed on 8-9-1972. According to the petitioner, long after that the petitioner received Ext. P-2 order from the 2nd respondent directing him to remit Rs 750/-as stamp duty and Rs. 7500/- as penalty on the unstamped sale letter marked as Ext. B-1. The petitioner made a representation to the 2nd respondent against Ext. P-2. In the above representation the petitioner stated that he was not aware of the orders passed by the court levying the stamp duty and penalty. As a result of the enquiries made by the petitioner he came to know that though the instrument in question was marked on 19-7-1972, the impounding was made by the court only on 7-8-1972 and that too without giving the parties to the suit any opportunity of being heard. According to the petitioner, the order passed by the 1st respondent on 7-8-1972 reads: "Stamp duty Rs. 750/- and penalty for Rs. According to the petitioner, the order passed by the 1st respondent on 7-8-1972 reads: "Stamp duty Rs. 750/- and penalty for Rs. 7500/- has to be realised under S.2 (d) of the Stamp Act. Stamp duty and penalty not paid impound and forward it to the District Collector for realisation." The petitioner challenges the above order Ext. P-2 in this original petition. The petitioner has also sought a declaration that the 1st respondent-Subordinate judge had no authority to pass an order imposing the stamp duty on the sale letter and levy the penalty. 3. On behalf of the 2nd respondent-District Collector a counter-affidavit has been filed and the statement in Para.3 of the counter-affidavit is that the impounding in question was made on 8 21972. I am at a loss to understand how having impounded the instrument on 8 21972 the Subordinate Judge allowed it to be marked on 19 2-1972 without the payment of the stamp duty and the penalty levied. Along with the counter-affidavit a letter dated 610-1972 from the 1st respondent to the 2nd respondent forwarding the instrument in question for the realisation of stamp duty and penalty is produced as Ext. R-1. Ext. R2 is a communication rejecting the representation made by the petitioner against Ext. P2. 4. Shri K. T. Thomas, learned counsel for the petitioner, contends that what the 1st respondent has done in this case is something which is not warranted by any of the provisions contained in the Kerala Stamp Act, 1959, for short the Act. Learned counsel points out that the 1st respondent could have very well impounded the instrument in question under S.33 (1) of the Act, but that should have been done before allowing the instrument to be marked. In this case, on 19 71972 the learned Subordinate Judge allowed the document to be marked and it was actually marked as Ext. B1. Learned counsel then contends that if, as a matter of fact, the instrument is one which ought to have been stamped and is one which was either not stamped or insufficiently stamped, without impounding the same and realising the duty and penalty levied, the learned Subordinate Judge had no business to allow it to be marked. Learned counsel then refers to S 34 of the Act and points out that the learned Sub Judge ought not to have admitted the instrument in question in evidence. Learned counsel then refers to S 34 of the Act and points out that the learned Sub Judge ought not to have admitted the instrument in question in evidence. Reference is then made to S.37 of the Act. Learned counsel contends that what the 1st respondent ought to have done was to impound the instrument in question and send to the Collector authenticated copies of the instrument together with a certificate in writing stating the amount of duty and penalty levied in respect thereof along with the amounts realised. The 1st respondent could also have very well forwarded the instrument to the District Collector under sub-section 2 of S.37 of the Act. In the first case, the instrument can be allowed to be marked as the duty and penalty have been realised. In the second case, the instrument cannot be marked. Learned counsel then refers to S 39 of the Act which deals with the Collector's power to stamp the instruments impounded. According to the learned counsel, when once an instrument not stamped or inefficiently stamped was actually allowed to be marked, then only under S.59 of the Act the same can be called in question and under S.59 it is not the court which allowed the instrument to be marked that has got the powers. According to the learned counsel, the very fact that the court allowed the instrument to be marked shows that the instrument was properly stamped. In support of this contention learned counsel refers to Jageshar Naik v. Collector of Jaunpur (A. 1. R.1966 All. 392) wherein the Court said: "Thus an order admitting and instrument in evidence, involves a finding that it is relevant and admissible in evidence and that it is duly stamped or does not require to be stamped or the duty and penalty have been paid." Learned counsel also refers to Puran Chand v. Emperor (A. I. R.1942 Lahore 257) wherein the Court said: "'impounding' of a document should be held to take place not when a verbal order was given by the Court but when it was carried out that is when the document was taken into custody by the Court and an endorsement was made thereon." Reference is also made to Inderman Mahton v. Thakur Mohton (A. I. R.1947 Patna 443) in support of the contention that the Court cannot impound an instrument after it became functus officio. Learned counsel then refers to Javer Chandi. Pukhraj Surana (A. I. R.1961 S. C. 1655) wherein the Supreme Court said: "Where a question as to the admissibility of a document is raised on the ground that it has not been stamped or has not been properly stamped, the party challenging the admissibility of the document has to be alert to see that the document is not admitted in evidence by the Court. The Court has to judicially determine the matter as toon as the document is tendered in evidence and before it is marked as an exhibit in the case. Once a document has been marked as an exhibit in the case and has been used by the parties in examination and cross-examination of their witnesses, S.36 comes into operation. Once a document has been admitted in evidence, as aforesaid, it is not open either to the Trial Court itself or to a Court of Appeal or Revision to go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same court or a court of superior jurisdiction." Reference is also made to Thapar v. Vijay Kumar (A. I. R.1976 J & K 1) wherein the Jammu and Kashmir High Court has said: "An objection as to admissibility of a document to be exhibited must be judicially determined immediately and cannot be postponed in view of a pending issue on such question. If the document is admitted its admissibility is not open to question later. Once the court rightly or wrongly decides the issue so far as the parties are concerned the matter is closed." Learned counsel points out that the 1st respondent did not ask the petitioner to pay the stamp duty and penalty and it was the 2nd respondent who has asked the petitioner to make the payment. 5. Learned Government Pleader contends that the impounding in question is under S.33 of the Act and not under S.34. According to the learned Government Pleader, the Ist respondent has the power to impound an instrument if the same is not stamped or not sufficiently stamped. Learned Government Pleader points out that S.33 read with S.37 give the necessary power to the 1st respondent to make the impounding in question. According to the learned Government Pleader, the Ist respondent has the power to impound an instrument if the same is not stamped or not sufficiently stamped. Learned Government Pleader points out that S.33 read with S.37 give the necessary power to the 1st respondent to make the impounding in question. Learned Government Pleader then contends that even if the petitioner is aggrieved, it is not the extraordinary jurisdiction of this Court under Art.226 of the Constitution which should be invoked. According to the learned Government Pleader only a civil revision petition will lie against the order of impounding made by the 1st respondent. In support of this contention learned Government Pleader refers to Rangaraju v. Kamesan (AIR. 1953 Mad. 698) wherein Govinda Menon J. (as he then was) has held that an order of impounding an instrument under the Stamp Act made by a Civil Court is a final order against which only a revision petition will lie. Learned Government Pleader further points out that Ext P-2 was issued by the 2nd respondent in pursuance of Ext. R-1 requisition made by the 1st respondent and there is nothing illegal in the matter since the 1st respondent has powers in the matter under the Act. Reference is also made to Chanda Pillai v. Munsiff, Tiruvalla (1975 KLT. 753) wherein the powers of the Civil Court under S.37 of the Act came up for consideration. 6. S.33 of the Act dealing with examination and impounding of instruments reads: "33. Examination and impounding of instruments: (1) Every person having by law or consent of parties authority to receive evidence, and every person in charge 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. (2) For that purpose every such person shall examine every instrument so chargeable and so produced or coming before him, in order to ascertain whether it is stamped with a stamp of the value and description required by the law in force in the State when such instrument was executed or first executed." (The proviso to sub-section (2) and sub-section (3) omitted.). Section 34 of the Act reads: "34. Section 34 of the Act reads: "34. Instrument not duly stamped inadmissible in evidence, etc: No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped: Provided that - (a) any such instrument not being an instrument chargeable with a duty of twenty paise or less than twenty paise shall, subject to all just exceptions, be admitted in evidence on payment of the duty with which the same is chargeable, or in the case of an instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion;" (Clauses (b) to (e) of the proviso omitted). Section 35 of the Act reads: "35. Admission of instrument where not be questioned: Where an instrument has been admitted in evidence such admission shall not, except as provided in S.59, be called in question at any stage of the same suitor proceeding on the ground that the instrument has not been duly stamped." Section 37 of the Act which says as to how instruments impounded are to be dealt with reads: , "37. Instruments impounded how dealt with. (1) When the person impounding an instrument under S.33 has by law or consent of parties authority to receive evidence and admits such instrument in evidence or when he is a registering officer to register such instrument upon payment of a penalty as provided by S.34 or of duty as provided by S.36, he shall send to the Collector an authenticated copy of such instrument, together with a certificate in writing, stating the amount of duty and penalty levied in respect thereof, and shall send such amount to the Collector or to such person as he may appoint in his behalf. (2) In every other case, the person so impounding an instrument shall send it in original to the Collector." S. 59 of the Act reads: "59 Revision of certain decisions of Courts regarding the sufficiency of stamps: (1) When any court in the exercise of its Civil or Revenue jurisdiction or any Criminal Court in any proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure 1898, make any order admitting any instrument in evidence as duly stamped or as not requiring a stamp, or upon payment of duty and a penalty under S.34, the Court to which appeals lie from or references are made by, such first mentioned Court may, of Us own motion or on the application of the Collector take such order into consideration. (2) If such court, after such consideration, is of opinion that such instrument should not have been admitted in evidence without the payment of duty and penalty under S.34, or without the payment of a higher duty and penalty than those paid it may record a declaration to that effect, and determine the amount of duty with which such instrument is chargeable, and may require any person in whose possession or power such instrument then is, to produce the same, and may impound the same when produced. (3) When any declaration has been recorded under sub-section (2), the Court recording the same shall send a copy thereof to the Collector and, where the instrument to which it relates has been impounded or is otherwise in the possession of such Court, shall also send him such instrument. (3) When any declaration has been recorded under sub-section (2), the Court recording the same shall send a copy thereof to the Collector and, where the instrument to which it relates has been impounded or is otherwise in the possession of such Court, shall also send him such instrument. (4) The Collector may thereupon, notwithstanding anything contained in the order admitting such instrument in evidence, or in any certificate granted under S.41, or in S.42, prosecute any person for any offence against the stamp law which the Collector considers him to have committed in respect of such instrument; Provided that (a) no such prosecution shall be instituted where the amount (including duty and penalty), which according to the determination of such Court, was payable in respect of the instrument under S.34, is paid to the Collector, unless he thinks that the offence was committed with an intention of evading payment of the proper duty; (b) except for the purpose of such prosecution, no declaration made under this section shall affect the validity of any order admitting any instrument in evidence, or of any certificate granted under S.41." A civil Court has ample powers to impound an instrument which is either not stamped or not sufficiently stamped. A Civil Court can also forward the instrument in question to the District Collector for impounding. But in no case an instrument which is not either stamped or not sufficiently stamped can be allowed to be marked and admitted in evidence without impounding. In this case, what the learned Subordinate Judge has done is to allow such an instrument to be marked without impounding the same. This is not something which is contemplated by the Act. After admitting the instrument in evidence nothing can be done in the matter of impounding by that Court. This is clear from S.35 and 59 of the Act. Thereafter only S.59 of the Act can be put into action and under the section the court which allowed the instrument to be marked cannot be anywhere in the picture. In this case, what the learned Sub-Judge has done is to impound the instrument in question after the same was admitted in evidence. It goes without saying that this is something which cannot be done under the Act. The impounding is one without jurisdiction. The learned Sub-Judge issued Ext. In this case, what the learned Sub-Judge has done is to impound the instrument in question after the same was admitted in evidence. It goes without saying that this is something which cannot be done under the Act. The impounding is one without jurisdiction. The learned Sub-Judge issued Ext. R-1 requisition to the 2nd respondent because of the above impounding he made. Ext. P-2 has been issued by the 2nd respondent-District Collector only in pursuance of Ext. R-1 . If Ext. R-1 cannot be sustained, then Ext. P-2 also will have to go. 7. In the result, I hold that the 1st respondent had no jurisdiction to make the impounding in question. Ext. P-2 is set aside. But it is made clear that the respondents are free to take fresh action, if any, in the matter if the same is possible under the Kerala Stamp Act, 1959. The original petition is allowed to the extent indicated above. There will be no order as to costs.