1. This appeal arises out of a suit to enforce a mortgage-bond executed by the defendant No. 1 in favour of the plaintiff on the 2nd April 1909. The amount secured by the bond was Rs. 400 and the total amount claimed was Rs. 1,000. The plaintiff's suit was resisted by defendant No. 2 who was a subsequent purchaser of the mortgaged property. He contended that the bond was collusive and without consideration. The defendant No. 1 in his written statement pleaded part payment. He did not, however, appear at the trial to contest the suit.
2. The Court of first instance dismissed the plaintiff's suit holding that the transaction was not a real one and that the plaintiff had not proved the execution of the mortgage.
3. The plaintiff appealed and on appeal the learned Subordinate Judge admitted certain additional evidence, namely, the statement of one Arabuddin who was the writer of the mortgage-bond and whom the plaintiff desired to examine on commission in the' lower Court on the ground that he was ill but that application was refused by the learned Munsif. There was also an application to admit in evidence a certain order of the Sub-Divisional Officer of Gaibandha. On a consideration of this evidence and of the evidence adduced in the Trial Court the Subordinate Judge decreed the appeal with costs.
4. The defendant has appealed to this Court. The first contention of the appellant is that the lower Appellate Court is wrong in admitting in evidence the testimony of Arabuddin the writer of the document. He urges that the admission of this evidence and also of the order of Sub-Divisional Officer of Gaibandha does not come within the purview of Order XLI, Rule 27, C.P.C. With regard to the evidence of Arabuddin it would appear that in the lower Court the plaintiff had applied for his examination on commission but his application was refused on the ground that it was not supported by a certificate from a recognised medical practitioner. The learned Advocate for the appellant contends that this will not, therefore, come within the purview of Order XLI, Rule 27, C.P.C. Rule 27 has two clauses viz., (a) and (b). They run thus; (a) 'The Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or' (b) 'the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced or witness to be examined'.
5. It seems to me that the admission of the evidence of Arabuddin may well come under either of these clauses. The order of the Sub-Divisional Officer at Gaibandha is to the following effect. 'This may or may not be true. File 19th November 1920'. As far as can be seen this piece of evidence proved nothing one way or the other.
6. The next ground taken by the learned Advocate for the appellant is that the lower Appellate Court is wrong in treating the scribe as an attesting witness in the case to prove execution of the bond. It is, however, quite clear from the judgment of the Subordinate Judge that he did not treat the evidence of Arabuddin as evidence of an attesting witness. The fact appear to be this: one of the witnesses to the mortgage deed is dead and the other witness when the document was read over to him was unable to say whether this was or was not the document which he Had attested because, he stated that at the time of the execution of the deed it was not read over to him. He merely attested the signature of the executor. In such circumstances it was open to the plaintiff to prove execution of the deed by a person who was present at the time of the execution and for this purpose, he examined the scribe.
7. In these circumstances the appeal fails and is dismissed with costs.
8. I agree.