JUDGMENT 1. - This writ petition has been filed by the petitioner-defendant challenging the order dated 23.8.2007 passed by the learned trial court whereby his application filed under Order 47 Rule 1 CPC read with Section 151 CPC for reviewing order dated 22.3.2007 (Annex.5) was refused by the Court for the reasons recorded therein. 2. The order dated 22.3.2007 was passed by the learned trial court holding the document dated 12.1.2004 an agreement to sell to be admissible in evidence and the objections raised by the respondent regarding its admissibility based on the same being unregistered and insufficiently stamped were rejected. By the said order dated 22.3.2007, while the Court had expressly dealt with the issue relating to the admissibility of the said document for lack of registration, it has not dealt with the issue relating to the same being insufficiently stamped. 3. In the application filed by the petitioner, which resulted in passing of the order dated 22.3.2007, objections were raised by the petitioner that the document (Annex.2) dated 12.1.2004 would fall in the category of 'conveyance' in terms of explanation attached to Article 23 of the Second Schedule to the Rajasthan Stamp Law (Adaptation) Act, 1952 and therefore, the same was required to bear stamp duty in terms of the said article. The said document dated 12.1.2004 provides that the entire consideration of sale Rs. 18 lacs. has been received by the vendor and the possession of the land in question has been handed-over and a prayer was made for impounding of the said document and sending the same to the competent authority for determination and recovery of stamp duty and penalty. 4. The learned trial court rejected the review petition on two counts - (i) that order dated 22.3.2007 has been challenged by the petitioner by filing writ petition though the writ petition was filed after first filing the review petition before the trial court and (ii) it does not appear from the order dated 22.3.2007 that the issue about document being insufficiently stamped was argued before the Court. 5. I have heard learned Senior Counsel appearing on both the sides. 6. 5. I have heard learned Senior Counsel appearing on both the sides. 6. It was submitted by learned Senior Counsel for the petitioner that both the reasons given by the learned trial court are ex-facie incorrect, against settled legal position and against the record of the case and, therefore, the order impugned deserves to be quashed and set aside. It was further submitted that the document Annexure-2 from a bare look is insufficiently stamped as the possession has expressly been handed-over under the said document. It was submitted that in place of remanding the matter to the trial court, the issue may be decided by this Court. 7. On the other hand, learned Senior Counsel for the respondent tried to justify the order passed by the learned trial court and submitted that the trial court was justified in rejecting the review petition. However, learned Senior Counsel also submitted that in case the order impugned rejecting review is found to be not sustainable by this Court, then the issue relating to sufficiency of stamp duty on the document Annex.-2 may be decided by this Court. It was contended that the document is sufficiently stamped. Ultimately, it was prayed that the writ petition be dismissed. 8. I have considered the rival submissions made at Bar and perused the material placed on record. 9. The order passed by the learned trial court rejecting the application for review on the two counts stated herein-before are ex-facie incorrect. The first count for not entertaining the review petition on account of filing of writ petition after filing of the review petition is ex-facie against the express provision of Section 114 of the Civil Procedure Code (CPC). The said provision clearly contemplates filing and maintainability of a review petition before filing appeal etc. against the order sought to be reviewed and not vice-vers-a. The Hon'ble Supreme Court in the case of Kapoor Chand & Ors. v. Ganesh Dutt & Ors., reported at AIR 1993 SC 1145 has observed as under:- "The High Court cannot dismiss the review petition on the ground that in view of special leave petition having been filed against the judgment sought to be reviewed, the review petition was no longer maintainable because the judgment of the High Court would merge in the order of the Supreme Court. The question regarding merger of the judgment under review in the order of Supreme Court would have arisen only after this Court had considered the special leave petition on merits and had passed an order on the matters dealt with in the said judgment of the High Court. Till such an order was passed by the Supreme Court, it was competent for the High Court to review its judgment and the review petition could not be dismissed as not maintainable merely because special leave petition had been filed against the said judgment before the Supreme Court and was pending." 10. The second count on which the application was rejected regarding the issue of document being insufficiently stamped having not been argued by the petitioner also appears to be exfacie incorrect, inasmuch as, the application raising objection repeatedly makes reference to insufficiency of stamp and the judgments which have been cited in the order dated 22.3.2007 few of them also relates to issues under the Stamp Act. 11. In that view of the matter, the order impugned dated 23.8.2007 passed by the learned trial court rejecting the application for review is ex-facie against the provisions of law and record of the case and as such, the same is set aside. 12. Now coming to the issue relating to the sufficiency of stamp duty on the agreement to sell dated 12.1.2004 (Annex.2). The said document titled as 'an agreement to sell' is inscribed on a stamp paper of Rs. 100/-. The crucial portion of the said document reads as under:- " vc cspku ds izfrQy dh dksbZ jde izkIr djuk 'ks"k ugha gSA pwdrh jde izkIr dj] ekSds ij dCtk jdck 9 ( uks ) ch?kk tehu dk okLrfod o HkkSfrd :i ls lqinZ dj fn;k gS ftlds vki [kjhnnkj dkfct ekfyd o Lokeh jgsaxsA " 13. Article 23 in so far as the same is relevant reads as under:- "23. Conveyance as defined by section 2(10),: "(i) if relating to immovable property. (ii) if relating to movable property. Exemption : Assignment of copy right by entry made under the Indian Copy Right Act, 1957. Explanation : For the purpose of this article an agreement to sell an immovable property or an irrevocable power of attorney or any other instrument executed in the course of conveyance or lease e.g. allotment letters, patta, licence etc. Exemption : Assignment of copy right by entry made under the Indian Copy Right Act, 1957. Explanation : For the purpose of this article an agreement to sell an immovable property or an irrevocable power of attorney or any other instrument executed in the course of conveyance or lease e.g. allotment letters, patta, licence etc. shall, in case of transfer of the possession of such property before, at the time of or after the execution of any such instrument, be deemed to be a conveyance and the stamp duty thereon shall be chargeable accordingly: Provided that the provisions of section 47-A shall be applicable mutatis mutandis to such agreement or power of attorney or instruments as are applicable to a conveyance. Provided further that the stamp duty already paid on such agreement or power of attorney or instrument shall at the time of the execution of a conveyance or lease in pursuance of such instruments subsequently, be adjusted towards the total amount of duty chargeable on the conveyance or lease." 14. The above quoted contents of the document brings the said agreement to sell dated 12.1.2004 within the mischief of explanation attached to Article 23 as quoted herein-before. The document termed as agreement to sell dated 12.1.2004 (Annex.2) is, therefore, clearly insufficiently stamped. 15. Consequently, the agreement to sell dated 12.1.2004 is liable to be impounded under the provisions of Section 33 of the Indian Stamp Act, 1899 as adapted in Rajasthan. The original of the said document is said to have been filed by the respondent-plaintiff in the trial court and, therefore, the trial court is directed to send the original document to the competent authority for adjudicating the amount of deficient stamp duty and penalty leviable on the agreement to sell dated 12.1.2004. The document in question shall be admitted in evidence only on payment of full stamp duty and the penalty, which may be imposed by the competent authority. 16. The competent authority is directed to decide the stamp duty and penalty leviable on the said document as expeditiously as possible as the suit was filed way-back in the year 2005 and it has not even reached the stage of plaintiff's evidence.The writ petition filed by the petitioner is allowed with the above observations and directions.No costs.Petition allowed. *******