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This petition is filed seeking following reliefs:

"1. Issue a Writ, in the nature of certiorari by quashing the impugned order dated 18.12.2018 passed on I.A. filed under Section 151 of CPC and 38 & 40 of Karnataka Stamp Act in O.S.No.201/2010 by the II Additional civil judge, Arasikere vide Annexrue-F and consequently dismiss the application filed by the 1st defendant under Section 151 of CPC and 38 & 40 of Karnataka Stamp Act.

2. Grant such other reliefs as this Hon'ble court deems fit in the facts and circumstances of the above case."

NC: 2025:KHC:23642 HC-KAR

2. Sri.Girish M.K., learned counsel appearing for the petitioners submits that the petitioners filed a suit for partition and separate possession. In the said proceedings, respondent No.1 filed an application under Section 151 of Code of Civil Procedure, 1908 (CPC) and Section 38 to 40 of the Karnataka Stamp Act, 1957 (for short 'the Stamp Act'), seeking prayer to send document i.e., Ex.D86 to the Sub-Registrar, Arasikere for registration. The trial Court without considering the effect of Section 23 of the Registration Act, 1908, by incorrect understanding of law, directed the Sub-Registrar, Arasikere to register Ex.D86 i.e., Palu patti deed and directed to return the same. The trial Court has committed a grave error in understanding the scope and ambit of the Stamp Act and the Registration Act. Hence, he seeks to allow the petition.

4. I have heard the arguments of the learned counsel for the petitioners, the learned counsel for respondent No.1 and meticulously perused the material available on record.

Civil Appeal No.1573/2023 dated 19.07.2024 NC: 2025:KHC:23642 HC-KAR

5. The petitioners filed O.S.No.201/2010 seeking relief of partition and separate possession. The respondent No.1 defended the said suit by filing the written statement. In the said proceedings, respondent No.1 filed an application under Section 151 of CPC and Sections 38 to 40 of the Stamp Act, seeking the direction to the Trial Court to send Ex.D86 for registration. The said application was opposed by the petitioners. The trial Court considering the rival submissions, allowed the application by directing the Sub-Registrar, Arasikere to register Ex.D86 and send this registered document to the Court. The Trial Court has come to the conclusion that the stamp duty and penalty was paid and within one month of paying the duty and penalty, the application for registration is moved which is within the stipulated period as per Section 40(2) of the Stamp Act. The Trial Court relied on the decision of this Court in the case of K.Amarnath v. Puttamma2 has recorded that the case on hand falls under the purview of Section 40(2) of the Stamp Act and held that when the ILR 1999 KAR 4634 NC: 2025:KHC:23642 HC-KAR document is relied by the party and paid duty and penalty in accordance with law, the same is required to get registered in order to get marked in the evidence and to appreciate the same on merits. In my considered view, the trail Court has committed grave error as Section 40 of the Stamp Act has no application to the case on hand. Section 41 of the Stamp Act provides endorsement of instruments on which duty has been paid under Sections 34, 39 or 40. The scope of Section 41(1) of the Stamp Act mandates that when the duty and penalty (if any) leviable in respect of any instrument have been paid, the person admitting such instrument in evidence, as the case may, shall certify by endorsement thereon that the proper duty and penalty have been levied in respect thereof. Section 41(2) of the Stamp Act provides that, every instrument so endorsed shall thereupon be admissible in the evidence, and may be registered and acted upon and authenticated as if it had been duly stamped. The said sub-section provides that once the instrument is endorsed, it shall be admissible in NC: 2025:KHC:23642 HC-KAR the evidence and also be registered. However, that does not mean that every instrument where stamp duty and penalty is paid is required to be registered. The word registration referred under Section 41(2) of the Stamp Act is subject to Section 23 of the Registration Act. For easy reference, Section 23 of the Registration Act, reads as under:

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NC: 2025:KHC:23642 HC-KAR registrar to register the instrument. For the aforementioned reasons, I proceed to pass the following:

ORDER

i) The writ petition is allowed.

ii) The impugned order dated 18.12.2018 passed on application filed under Section 151 of CPC and Sections 38 to 40 of the Karnataka Stamp Act, 1957 in OS.No.201/2010 by the II Additional Civil Judge, Arasikere is hereby set aside.