P L D 1961 (W (PLP)

2. Mr. Khairat Ali, the learned counsel appearing for the respondent, has raised a preliminary objection to the effect that no revision lies in the present case, as the order passed by the trial Judge is of an interlocutory nature and is not a case decided within the meaning of section 115 of the Civil Procedure Code. B The contention, however, has no force in view of the decisions in Bibi Gurdevi v. Chaudhri Muhammad Bakhsh (A I R 1943 Lah. 65) and Lala Uttam Chand v. Perman Nand and others (A I R 1942 Lah. 265). In the former case their Lordships of the Full Bench observed that "the word `case' in section 115 is wide enough to include interlocutory orders passed in a suit. The word `case' does not always mean the whole suit. It is of a very wide import, and means any state of facts juridically considered. This meaning is wide enough to include a decision on any substantial question in controversy between the parties affecting their rights, even though such order is passed in the course of the trial of the suit." Their Lordships, however, went on to observe that such an order will be open to revision only if the other conditions expressly laid down in section 115 are satisfied and the order has resulted or is likely to result in such a gross injustice or irreparable injury as cannot be remedied otherwise than by the exercise of the extraordinary jurisdiction of the High Court at that stage.

3. In the other case, just referred to, Din Muhammad, J. dealt precisely with the same question as has arisen in the present case. His Lordship observed that "an order impounding a document and forwarding it to the Collector for necessary action under the Stamp Act is a case decided within the meaning of section 115, Civil Procedure Code, inasmuch as the matter which was disputed between the parties qua the aspect of the case relating to the duty leviable on the document so far as the parties are concerned must be taken to have been finally set at rest and no stage will ever arise later at which the order impounding the document would be liable to be attacked. Hence, the order is open to revision under section 115."

4. As regards the nature of the document, it would be profitable to reproduce here the definition of `bond' given in section 2 (5) of the Stamp Act. It is to the following effect :‑ " `Bond' includes‑ (a) any instrument whereby a person obliges himself to pay money to another, on condition that the obligation shall be void if a specified act is performed, or is not performed, as the case may be ; (b) any instrument attested by a witness and not payable to order or bearer, whereby a person obliges himself to pay money to another ; and (c) any instrument so attested whereby a person obliges himself to deliver grain or other agricultural produce to another."

5. The leading case on the distinction between a "bond" and an "agreement" appears to be that of Gisborne & Co. v. Subal Bowri (8 I L R (Cal.) 284). The judgment of the Court was delivered by Garth, C. J., and his Lordship's observations have been quoted with approval in several subsequent cases, for example, Sundar Lal v. Thakur Gandharap Singh (161 I C 420). The Collector of Rangoon v. Maung Aung Ba (33 I C 920) and Yeo Eng PWA and others v. Chetty Firm of R. M. A. R. R. M. (4 I C 293). The sum and substance of these observations appears to be that breach of an obligation under a bond does not "sound in damages", whereas damages is what one who breaks an ordinary contract is subjected to. According to Garth, C. J., "not only is the bond a contract of a different form and nature from a covenant with a penal clause, but the remedy upon it and the amount recoverable for the breach of it is also different". Applying this test, the learned trial Judge observed that "in the present case the document in question does not envisage the payment of any damages. It clearly falls within the definition of the `bond' as enunciated in section 2 (5) of the Stamp Act".

6. Mr. Muhammad Sardar Khan, the learned counsel appear ing for the petitioner, has, however, contended that whatever be the distinction between a bond and an agreement an essential condition for constituting a document into a bond under clause (a) of section 2 (5) is absent in the present case, inasmuch as there is nothing which the obligor is to do or forbear to do, after incurring the obligation. The obligor in the present case is the respondent, who has obliged himself to pay the stipulated sum to the petitioner, but the obligation is to be rendered void not because any act is performed or ‑not performed by the obligor, but on the contrary by the obligee, who is to get the mutation attested within the prescribed period and whose failure to do so would deprive him of the money. I think there is force in this contention.

7. The definition in clause (a) of section 2 (5) of the Stamp Act, with which we are concerned in this case, makes it clear that what is contemplated is the creation of an obligation by a person to pay money to another as a security for an act, or forbearance, C on his part. The obligation to pay is renderedvoid if the condition is fulfilled.

8. This point was considered by a Full Bench of the Allahabad High Court as long ago as 1880 in the case reported on page 654 of 2 I L R (All.) That was a reference by the Board of Revenue and the following remarks in the reference are relevant for our purpose:-- "By the instrument in question the excise contractor binds himself to pay certain sums annually to the Collector of Allahabad on condition that the obligation shall be void if a specified act be not performed, namely, if the Collector do not make over to him the monopoly of the right of vend of spirituous liquors within certain parts of the Allahabad district. The Board, however, are inclined to think that the concluding words of the definition refer to the obligor of a bond and not to the obligee, and that it is the obligor not the obligee on whom the performance or the non‑performance of the `specified'` act' is incumbent.". In dealing with this part of the reference Oldfield, J. observed as follows :‑ "I agree with .the Board that the words in the definition of bond in the Act 'on condition that the obligation shall be void if a specified act is performed, or not performed, as the case may be', refer to the obligor, and it is the obligor and not the obligee on whom the performance or non‑performance of the specified act is incumbent."

9. It will be seen, therefore, that in the present case the essential condition contained in the latter part of the definition in clause (a) of section 2 (5) of the Stamp Act is absent inasmuch as the obligor, that is the respondent, is not called upon to perform or not to perform any act, and his obligation to pay is to be rendered void because of something which has been made the responsibility of the obligee. This being so, the document t excuted between the parties does not fall within the definition of "bond" but must be regarded simply as an agreement. As it is properly stamped as an agreement no question of levying any deficiency or penalty arises.

10. The revision petition is, therefore, accepted with costs and the order of the trial Judge, dated the 15th of October 1959, is set aside. K. M. A.Petition accepted.