(Prayer: Appeals (disposed of on 9-7-1948) against the decrees of the Court of the Subordinate Judge of Anantapur in A.S. Nos. 72 and 73 of 1944 respectively preferred against the decrees of the Court of the District Munsif of Anantapur in O.S. Nos. 88 and 93 of 1942 respectively.)

The plaintiffs are the appellants in these two second appeals. Their suits for recovery of moneys due under promissory notes were dismissed by the lower appellate Court. Hence these second appeals.

The promissory note which is the subject matter of Second Appeal No. 1361 of 1945 is dated 2nd March 1939 and is Ex. P. The promissory note which is the subject-matter of S.A. No. 1362 is dated 3rd March 1939, Ex. P.

1. These promissory notes were affixed with postage and revenue stamp of one anna each. Even in the written statements filed by the defendants, objection was taken that these promissory notes were not enforceable as they were not properly stamped. Issue 3 was framed to cover this contention.

The learned District Munsif who tried the two suite out of which these second appeals arise in the first instance disposed of the suits only on issue 4 and he came to the conclusion that the money advanced under the promissory notes was not out of the funds of the temple but out of the private money of the first defendant. Notwithstanding the existence of an issue regarding the sufficiency of the stamp, the promissory notes were marked as Ex. P. and Ex. P. 1 for the hearing of the suits on issue

4. The suits were dismissed by the District Munsif on the finding on issue 4 and there was an appeal to the District Court. The District Judge reversed the finding on issue 4 and remanded the suits for disposal on other issues. After remand the suits again came up for trial before the same learned District Munsif. His finding on this issue was that as the promissory notes were admitted under O. 13, R. 4 of the Civil Procedure Code the defendants were precluded from raising the objection regarding the sufficiency of stamp under S. 36 of the Stamp Act. He observed in the course of the judgment,

There is nothing on record to show that the defense Counsel took objection to the admissibility of these documents when they were admitted into evidence. Nor is there any evidence on record to show that the suit promissory notes were not properly stamped, in fact, no such objection was taken then. In the absence of any objection by the defense at the time of marking these documents as Exs. P. and P. 1, and admitting them into evidence, the usual procedure laid down in O. 13, R. 4 was followed and the promissory notes were admitted in evidence with the view that there was nothing against their admission.

These remarks of the learned District Munsif are somewhat surprising. In the first place his statement that there was no evidence on record to show that the promissory notes were not properly stamped discloses that the learned District Munsif did not look into the documents at the time they were marked; for if he had done so, he would have noticed that they bear only a postage and revenue stamp of one anna each. The more serious objection to his remarks is that the learned District Munsif seems to have overlooked the plea in the written statement and the issue in the which definitely raised the question of the insufficiency of the stamp. In the face of these objections it is difficult to see what necessity there was for the Counsel for the defense to go on repeating his objections at each time. The very finding of the learned District Munsif discloses that when the promissory notes were marked at the preliminary trial as Exs. P. and P. 1, he did not at all consider the admissibility of the documents and must have marked them tentatively for the purpose of the disposal of that issue.

The learned appellate Judge in my opinion came to the correct conclusion in holding that in view of the circumstances set forth above there was no admission of the documents in evidence within the meaning of S. 36 of the Stamp Act. As in the present case there was a specific issue on the point and as the documents were marked at the preliminary trial without disposing of that issue, it cannot be said that the documents were admitted in evidence within the meaning of S. 36 so as to preclude the defendants from raising question that the documents were not properly stamped. Even if the learned District Munsif had decided issue 3 in favour of the plaintiffs and came to the conclusion that they were admissible, it would have been perfectly open to the appellate Court to reverse that finding and reject the documents as it must be deemed that an admission under S. 36 must be only subject to his finding on issue

3. As I agree therefore with the finding of learned Subordinate Judge on this point, it is unnecessary for me to go into the other questions that have been raised. The result is that these appeals fail and are dismissed with costs.

No leave.