HAR DAYAL SINGH Vs. PUNJAB NATIONAL BANK

JUDGEMENT

(1.) This revision is directed against the order dated May 1, 1987 passed by District Judge, Narnaul whereby he has allowed an application of the Punjab National Bank (respondent No. 1 herein) under Order 41 Rule 27 of the Code of Civil Procedure (for short 'the code') and has directed the trial Court to afford one and only one opportunity to it do lead evidence to prove mortgage deed Exhibit P-17. The defendant No. 1 petitioner is aggrieved against this order. When the petition came up for motion hearing, S.P. Goyal, J., (as he than was) passed, inter alia the following order :

(2.) I have considered the above submissions, the learned District Judge has rightly exercised his jurisdiction. The learned trial Court had wrongly admitted mortgage deed into evidence when it had been proved in accordance with the provisions of law and in fact its execution had been denied by the petitioner. Later, however, the learned trial Court rejected the mortgage deed for the reason that it had not been validly proved. It therefore, did not accept the claim of the bank on the basis of the mortgage deed qua the petitioner. It is thus, not a case where it can be said that the mortgage deed stood admitted in evidence and there is no need to examine any witness as to prove the same. The case, in fact, is otherwise.

(3.) No doubt, in the normal circumstances an application under Order 41 rule 27 of the code should be decided by the appellate Court when it applied its mind to the merits of the appeal and that can only be when final arguments in the appeal are heard. In the present case, however, the mortgage deed was received in evidence without its proof and was consequently rejected by the trial Court at a later stage. It is, thus obvious that the claim against the petitioner could not be sustained in appeal unless the mortgage deed is proved by leading evidence in accordance with Section 68 of the Indian Evidence Act, 1872 . Adjudication of appeal on merits shall take place only after an opportunity to lead evidence on the point is given to the bank.