P.V. Dixit, C.J.The circumstances in which this application under article 226 of the Constitution has been filed are that in the course of proceedings under Order 38, rule 5 of the CPC Haji Abdul Hamid, the petitioner, filed an objection to the attachment made, and in support of the objection filed a document to show that the attached property belonged to him. The Additional District Judge, Satna, who was trying the suit, impounded the document treating it as conveyance deed and directed the petitioner to pay Rs. 496-12-0 as stamp duty on the document and penalty of Rs. 4,967-8-0. The petitioner did not pay the stamp duty or the penalty levied. The Additional District Judge sent the document to Collector for recovery of the amount of duty and penalty imposed by him. The suit in which the petitioner objected to the attachment was settled between the parties. Consequently, the objection having become anfractuous was rejected.

2. When the document was received by the Collector from the Additional District Judge, Satna, the petitioner filed objections in writing contending that the instrument was not chargeable as a conveyance that it was at the most a receipt; that the instrument was exempt from payment of duty under article 5 of the Indian Stamp Act, 1899 (hereinafter called the Act); and that no penalty or duty could be demanded or recovered from him, as he was not the executant and the document was not admitted in evidence. The Collector, Satna, did not entertain any of these objections, taking the view that be was bound to recover the amount of penalty and duty as levied by the Additional District Judge, Satna, by his order dated 1 July 1957, Accordingly, he initiated proceedings for the recovery of the duty and penalty imposed by the Additional District Judge. The petitioner then preferred a revision petition before the Board of Revenue against the order of the Additional District Judge, Satna. The Board of Revenue rejected the revision petition on the ground that the Board had no power to entertain any revision petition against the order of the Additional District Judge, and that the revision petition was therefore incompetent.

3. By this application the petitioner now prays that writs of certiorari be issued for quashing the orders of the Additional District Judge, Satna, the Collector Satna, and the Board of Revenue; that a writ of mandamus be issued to the Chief Controlling Revenue Authority, that is, the Board of Revenue, for referring the matter of the duty payable on an instrument to this Court u/s 57 of the Act; and that a direction be issued to the Collector, Satna, restraining him from taking any steps for recovery of the duty and penalty imposed by the Additional District Judge, Satna.

4. Having heard learned counsel for the parties, we have reached the conclusion that the only relief which he petitioner can be granted is a direction to the Collector to decide in accordance with section 40 the matter of the duty payable on the instrument forwarded to him by the Additional District Judge, Satna u/s 33, read with section 38 of the Act, the Additional District Judge had no doubt the power to impound the document filed by the petitioner and to admit it in evidence upon payment of duty and penalty determined by him. When the amount of duty and penalty is paid by the person concerned, than the Court impounding the document and imposing a duty and penalty has to send u/s 38 (1) of the Act an authenticated copy of the instrument, together with the amount paid, to the Collector. In every other case, the authority or the person impounding the instrument has to send it in original to the Collector, as laid down in sub-section(2) of section 38. Thus, if the instrument is not admitted in evidence because of failure of the party to pay the amount of duty and penalty, then the Court impounding the document has to send it in original to the Collector, as required by section 38(2), In the present case, the petitioner did not at all pay any duty and penalty. The document was therefore not admitted in evidence. The Additional District Judge, therefore, should have sent the instrument in original to the Collector, as laid down in section 38(2). Actually, the Additional District Judge sent the document in original to the Collector, albeit with a direction that the Collector should recover the amount of duty and penalty imposed by hi in. The Additional district Judge had no power to give such a direction. When the document was not admitted in evidence for the petitioners failure in the payment of the amount of duty and penalty, the document had to be sent to the Collector u/s 38 (2).

5. Now, section 40(i) of the Act says that when the Collector received any instrument sent u/s 38(2), not being an instrument chargeable with a duty not exceeding ten Naye Paise only or a bill of exchange or promissory not he shall adopt the procedure laid down in that section u/s 40 the Collector has to decide for himself the nature of the instrument and the proper duty payable on it and the amount of penalty that should be imposed if the document is not duly stamped. In the present case, though the; Additional, District Judge determined the amount of duty and penalty in respect of the document wider section 38(1), the transmission of the document to the Collector was lawful under sub-section (2) inasmuch as the petitioner did not pay the amount of duty and penalty laved by the Additional District Judge and the document was not admitted in evidence. That being the position, the Collector erred in thinking that he was bound by the determination of the Additional District Judge on the question of the nature of the instrument and. the amount of duty and penalty leviable in respect, of it and that all that he bad to do was to recover the amount of duty and penalty as levied, by the Additional District Judge, Saina, The Collector should have entertained the pensioners objection, and determined, the, nature of the instrument and the amount,of.duty and penalty leviable in respect of it, uninfluenced by the decision of the Additional District. Judge, Satna, as regards the nature of the instrument and the amount of duty and penalty. The recovery proceedings started by the Collector, Satna, without arriving at any determination as required by section 40 of the Act, are wholly illegal:

6. The petitioner followed altogether wrong course in approaching the Chief Controlling Revenue Authority for a revision of the order of the Additional District Judge, Satna. Under the Act, the Chief Revenue Controlling Authority had Clearly no power to interfere in any way with the order passed by the Additional District Judge. The decision of the Chief Revenue Controlling Authority rejecting the petitioners revision petition must therefore stand.

7. For these reasons this petition is allowed, and the Collector, Satna, is directed to proceed and decide u/s 40 the question the stamp duty payable on the instrument impounded by the Additional District Judge, Satna, and transmitted to him. The proceeding initiated by the Collector for recovery of the stamp duty and penalty levied by the Additional District Judge are quashed. In the circumstances of the case, we make no order for costs. The security deposit shall be refunded to the petitioner.