BABY Vs. SATHY

JUDGEMENT

(1.) The short question that arises in this second appeal is whether an order passed by the Appellate Court under R.27 of O.41 rejecting the reception of additional evidence can be challenged in second appeal under S.100 of the Code of Civil Procedure.

(2.) Appellants are the plaintiffs in O.S.32/81 before Sub Court, Parur. The suit is for specific performance of an agreement alleged to have been entered into between the defendant respondent and the husband of first appellant and father of appellants 2 to 4 by name Sathyan. By that agreement defendant had agreed to sell the properties described in the plaint: But the document could not be executed since defendant was in an advanced stage of pregnancy at that time. Demands were made subsequently. But defendant refused to execute the assignment and that necessitated the suit. Defendant denied the execution of the agreement and disputed the signature contained in the agreement as hers. Witnesses were examined on both sides and documents were also produced. The Trial Court after a consideration of the documents and evidence dismissed the suit holding that the evidence is not sufficient to establish the genuineness of the agreement. An appeal was preferred against that decision. During the pendency of the appeal appellants moved an application as I.A.374/86 for getting the opinion of an expert after comparing the disputed signature of the defendant with her admitted signatures. The lower Appellate Court dismissed that petition. After hearing both sides the appeal was dismissed. Hence the second appeal.

(3.) The following three substantial questions of law are seen formulated in the appeal memorandum. The appeal was admitted on those questions of law.