Walmsley, J.@mdashThe circumstances which have given rise to this Reference are as follows:-In an execution case at Habiganj, the next friend of a minor decree-holder was directed to furnish security under Order XXXII, Rule 6(2) of the CPC before receiving certain money on behalf of the minor. He filed a security bond and then a question arose as to whether the bond was to be stamped under the Court-fees Act, or under the Stamp Act. The learned Munsif found that there were two conflicting decisions on the point, viz., the case of Dwarkanath Dey v. Sailaja Kanta Mallik (1916) 21 C.W.N. 1150. and that of Sarbo Musalmani v. Safar Mandal ILR (1922) Cal. 997. and he referred the question to this Court under the provisions of Order XLVI, Rule 1 of the CPC Code.
2. A Division Bench finding the two decisions to be directly opposed to one another has referred for the decision of a Full Bench the question whether a security bond executed under the order of the Court passed under Order XXXII, Rule 6(2) or under any other order or section of the CPC should be stamped under the Court-fees Act or under the Stamp Act.
3. The learned Government Pleader has appeared before us and has suggested that our answer should be to this effect, that such security bonds should be stamped under Article 6, Schedule II of the Court-fees Act, unless they are of such a nature as to attract the operation of Article 40 or Article 57 of the Stamp Act.
4. Article 6 of Schedule II of the Court-fees Act now runs: "Bail-bond or other instrument of obligation given in pursuance of an order made by a Court or Magistrate under any section of the Code of Criminal Procedure or the Code of Civil Procedure."
5. I feel no hesitation in holding that a security bond of the kind mentioned in the Munsif''s letter comes within this description. With all deference to the learned Judges who decided the case of Dwarkanath Dey v. Sailaja Kanta Mallik (1916) 21 C.W.N. 1150., I think they placed too narrow a meaning on the words" in pursuance of". Compliance with a condition imposed by a Court is, in my opinion, an act done in pursuance of the Court''s order: and I think that the narrow construction proposed in the judgment mentioned would render Article 6 nugatory.
6. It does not follow, however, that because a security bond falls within the scope of Article 6, Schedule II of the Court-fees Act, it is free from the provisions of the Stamp Act. This Act contains a clause-Section 2(5)-which enumerates three kinds of instruments which are to be regarded as bonds. Then in Schedule I there are three articles which have a bearing on the question before us, viz., Articles 15, 10 and 57. They are as follows:-
Article 15. Bond [as defined by Section 2(5)] not being a Debenture (No. 27) and not being otherwise provided for by this Act or by the Court-fees Act, 1870.
Article 40. Mortgage-deed, not being [an Agreement relating to Deposit of Title-Deeds, Pawn or Pledge (No. 6)] Bottomry Bond (No. 16), Mortgage of a Crop (No. 41), Respondentia Bond (No. 56), or Security-Bond (No. 57).
Article 57. Security-bond or Mortgage-deed executed by way of security for the due execution of an office, or to account for money or other property received by virtue thereof or executed by a surety to secure the due performance of a contract.
7. A comparison of these articles shows that Article 15 is of a residuary character intended for bonds which cannot be assigned to any other of the articles of the Stamp Act and are not provided for by the Court-fees Act. It is the only article in which reference is made to the Court-fees Act. It follows therefore that a bond which finds its proper place in one of the other articles is not exempt from duty under the Stamp Act, and, at the same time, as being-given in pursuance of the Court''s order, it is liable under Article 6, Schedule II of the Court-fees Act.
The answer that I propose to the Reference is that the security bonds executed in pursuance of an order of the Court under Order XXXII, Rule 6(2) or any other rule or section of the CPC must bear a Court-fee stamp as required by Article 6 of Schedule II of the Court-fees Act, 1870; and they will also be chargeable under the Stamp Act if they are of the kind described in Article 40 or Article 57, but they will not be chargeable under the Stamp Act if they fall under the residuary Article 15.
Greaves, J.
8. I agree.
C.C. Ghose, J.
9. I agree.
B.B. Ghose, J.
10. I agree.
Mukerji, J.
11. I agree.
