(1) When any Court in the exercise of its civil or revenue jurisdiction or any Criminal Court in any proceeding, makes any order admitting any instrument in evidence as duly stamped or as not requiring a stamp, or upon payment of duty and a penalty under section 35, the Court to which appeals lie from, or references are made by, such first-mentioned Court may, of its own motion or on the application of the Collector, take such order into consideration.
(2) If such Court, is of opinion that such instrument should not have been admitted in evidence without the payment of duty and penalty under section 35, or without the payment of a higher duty and penalty than those paid, it may record a declaration to that effect, and determine the amount of duty with which such instrument was chargeable, and may require any person in whose possession or power such instrument then is, to produce the same, and may impound the same when produced.
Legal Commentary & Landmark Judgments: Section 61
Section 61 establishes an appellate and revisional mechanism for the protection of public revenue, empowering higher courts to review trial court orders admitting insufficiently stamped instruments, without disturbing the evidentiary admission of the document between the litigating parties.
If the trial court mistakenly or deliberately marks an under-stamped document as an exhibit without objection, invoke *Javer Chand* to argue that Section 36 completely bars the opposing party from raising the stamp deficiency on appeal. If the appellate court threatens to interfere, point out that its jurisdiction under Section 61 is strictly limited to impounding the document for post-judgment recovery by the Collector, and cannot form the basis for reversing the decree.