1. This is an appeal by some of the defendants. The suit was for recovery of a sum of money on the basis of a simple mortgage deed dated 5th February 1922. The suit was against the mortgagors and their descendants and certain subsequent transferees. The appeal before us is only by the mortgagors or their descendants. The suit has been decreed by the Courts below and hence this appeal before us. Several points were taken in defence and with some of them we are not concerned. In view of the findings of the Courts below and in view of certain concessions made by learned Counsel for the appellants before us, it is not necessary to find out whether the hypothecation bond was duly executed or not and whether the hypothecation bond was with consideration or not. There was some controversy about the grant of instalments in the Courts below, namely whether the defendants were entitled to four years' instalments or to 15 years' instalments, but that point is also not In dispute before us. The defendants alleged that the mortgagees got one - anna share of village Saifabad entered in the hypothecation bond instead of a four pie share only, but this point is also not pressed before us. Nor is it contended that the hypothecation bond is in any way defective for not being sufficiently stamped. The defendants alleged that the mortgage bond in suit had been paid up inasmuch as under a subsequent oral agreement some property was given to the mortgagees and they were put in possession of the same and the covenant was that the mortgagees should pay themselves out of the profits of the property over which they were given possession. Before us it was further contended--though this contention was not clearly raised in the written statement-that during the continuance of the mortgage the mortgagees entered into possession of the mortgaged property or a portion of the mortgaged property and therefore they were bound, to account for the profits thereof and such profits should go towards the liquidation of the debt in suit.
2. One other point has emerged out of the judgments of the Courts below and it is that Jaikaran Singh, one of the defendants to the suit, was present in Court while his witnesses were being examined and subsequently he attempted to examine himself in support of the plea of payment and subsequent agreement. The trial Court refused to examine him and presumably this was done in view of the authority of a Single Judge decision of this Court reported in Lalmani v. Bijai Ram : AIR1934All840 . When this appeal came before a learned Single Judge of this Court he was doubtful as to the correctness of the above decision and he directed that the case should be Lal d before a Bench of two Judges, and that is how the matter has come before us. Bennet J. in Lalmani v. Bijai Ram : AIR1934All840 referred to above held that the universal practice in the Courts in India is that witnesses should be called in one by one and that no witness who is to give evidence should be present when the deposition of a previous witness is being taken, and a breach of this rule may well be termed as an abuse of the process of the Court and therefore under Section 151, Civil P.C., the Court had inherent powers to prevent that abuse and to pass an order directing that such a witness should not be examined. That there is such a practice admits of no doubt, but there is no rule of the Court to this effect, nor is there any provision of law in the Civil Procedure Code or in any other statute. Section 135, Evidence Act, to which reference was made by the learned Judge, only provides that the order in which witnesses are produced and examined shall be regulated by the law and practice for the time being relating to civil and criminal procedure respectively, and in the absence of any such law by the discretion of the Court. But this does not authorise a Court of law to refuse the examination of any particular witness who might have done something which is not very desirable. In Chandler v. Horne (1842) 2 Moo and Rob 423 : 62 R.R. 819 Brskine J. observed:
It used to be formerly supposed that it was in the discretion of the Judge whether the witness should be examined. It is now settled and acted upon by all the Judges that the Judge has no right to exclude the witness; he may commit him for the contempt, but he must be examined; and it is then matter of remark on the value of his testimony that he has wilfully disobeyed the order.
3. The headnote in the authority is to the following effect:
Where a witness remains in Court, after an order that the witnesses shall leave the Court, his testimony cannot on that ground be excluded; it is only matter for observation on his evidence.
4. Jaikaran Singh when he wanted to examine himself would have had to take the oath of telling the truth and if he did not tell the truth he could be punished and in any event the Judge could have taken notice of the fact that he was present while his witnesses were being examined and might on that account have not relied upon his testimony, but it is a very drastic measure to exclude a witness tendered by a party. Reliance was placed on Section 151, Civil P. C. It is true that the inherent powers of the Court are very wide and undefinable, but at the same time the exercise of such powers should not be made in an arbitrary and capricious manner. After having given the matter our best consideration, we have come to the conclusion that the trial Court was not justified in refusing to examine Jaikaran Singh, and the defendants-appellants might be said to have been prejudiced by the exclusion of the testimony of Jaikaran Singh and we are not in agreement with the view taken by a learned single Judge of this Court in Lalmani v. Bijai Ram : AIR1934All840 .
5. Another point which calls for comment in this ease is the view taken by the Court below on the question of payment. The learned Judge of the lower appellate Court seems to think-we may be wrong in thinking that that is the view of the lower appellate Court-that no evidence could be tendered by the defendants in order to prove a subsequent agreement. The defendants as far as we have been able to understand their pleas said that after the mortgage in suit there was a subsequent oral agreement between the mortgagees and the mortgagors under which the mortgagees were put in possession of some property and it was settled that the mortgagees should pay themselves out of the usufruct of the property over which they were put in possession and such an oral agreement can undoubtedly be proved because all that was attempted to be proved was payment. This applies whether the mortgagees were in possession of the property mortgaged or whether they were put in possession of some other property. If, however, they entered into possession of the mortgaged property during the continuance of the mortgage then Section 76, T.P. Act, comes into play and the mortgagees have under those circumstances to keep clear and regular accounts and give credit for the receipts from the mortgaged property. If the mortgagees have entered into possession of any property prior to the mortgage deed in suit the matter cannot be investigated in the present litigation unless it be that the mortgagors are able to prove that subsequent to the mortgage there was an agreement by which the mortgagees were asked to remain in possession in order to pay themselves for the mortgage.
6. For the reasons given above we send back the case to the lower appellate Court with a direction that it will re-admit the appeal on its original number and examine Jaikaran Singh and after having examined him decide the following issue which we remit to that Court: Has the mortgage deed in suit been paid up in whole or in part? Fresh evidence relevant to this issue might be admitted. The Court below will decide the above issue bearing in view our observations made above. The lower appellate Court is expected to return its finding within four months from today. On the return of the findings the usual ten days will be allowed for objections.