JAIKUMAR SHIVLAL SHAH Vs. MOTILAL HIRACHAND GANDHI

JUDGEMENT

(1.) This is an appeal against the judgment and decree passed by the District Judge, Osmanabad, in Civil Appeal No.34 of 1968 arising out of the decree passed by the Subordinate Judge Osmanabad, in Civil Suit No. 52/1 of 1955.

(2.) The predecessor of the respondents one Hirachand Amichand filed the suit for the recovery of Rs. 5250/- O.S. on the basis of a pro-note dated 6th December 1952 alleged to have been executed by one Shivial Raoji, the predecessor of the present appellants. The original defendant contested the claim denying both the execution and consideration of the pro-note. He also contended that the so-called pro-note was a money bend and the same being not duly stamped, it was inadmissible in evidence. The plaintiff filed his rejoinder rebutting the contentions raised by the defendant and giving the history and the details of the consideration. The rest of the contentions, are not material for our purpose. The learned trial Judge, on the evidence placed before him by the parties on both the sides, came to the conclusion for the pronote and that the so-called pro-note, being a money bond not duly stamped, it was inadmissible in evidence. He, therefore, dismissed the plaintiff's suit with no order as to costs. The plaintiff then went in appeal to the District Font. The learned District Judge found that the document on the basis of which the plaintiff sought to recover the money was a pro-note and not a money bond, and that the plaintiff had proved both execution and consideration for the same. He, therefore, passed a decree for Rupees 4,500/- with costs of the suit and future interest at 4 per cent, per annum. Being aggrieved by this, judgment and decree, the heirs and legal representatives of the original defendant have come I second appeal to this Court.

(3.) The learned Counsel Mr. Sathe, appearing on behalf of the appellants, first wanted to challenge the finding recorded by the learned District Judge on the question of execution and consideration by taking me through the evidence. However, both the findings being findings of facts based on evidence, and the learned Counsel not being able to urge any question of law on the strength of which these findings of facts could be disturbed. I have no alternative but to accept them and hold that the appellants cannot challenge these findings of facts in second appeal.