GH QADIR Vs. SULTAN

JUDGEMENT

(1.) THIS is a second appeal and arises out of execution proceedings. The decree -holders presented an execution application in the Court of Sub -Judge, Bhaderwah on 3rd Har, 2007, and it was alleged by the decree -holders in the application that they had previously filed an application for execution in that Court the record of which had been burnt. The executing Court started an enquiry to find out whether there, was any execution application made by the decree -holders in that Court. The executing Court found that as the decree -holders had not proved that any previous application was filed by them in that Court therefore their execution application was held to be time barred. Against that order the decree -holders appealed to the District Judge and filed three documents showing that the previous application had been made by them in the, executing Court and their application was wrongly held to be barred by time. The District Judge accepted the appeal of the decree -holders, set aside the order of the executing Court and remanded the case to it with the direction that it shall peruse the original papers, the copies of which were brought on the record, and pass fresh orders according to law. Against this order the judgment -debtors have preferred a further appeal to this Court.

(2.) A preliminary objection is taken by the respondents that second appeal is not competent inasmuch as the order passed by the lower appellate Court under O. 41, R. 27 is not appealable. The counsel appearing for the judgment -debtors has frankly conceded that second appeal is not competent and has prayed that it may be treated as revision. This prayer is accepted and this second appeal shall be treated as revision.

(3.) IT is contended on behalf of the applicants that the lower appellate Court was not right in allowing the respondents to adduce additional evidence in the appellate Court. Our attention has been drawn to O. 41, R. 27 which reads as under: 1 The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the appellate Court. But if - 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. 2 Wherever additional evidence is allowed to be produced by an appellate Court, the Court shall record the reason for its admission and it is contended that the lower appellate Court has not given any reasons for allowing the respondents to produce additional evidence; that the appellate Court did not require any document to be produced to enable it to pronounce judgment, and therefore no additional evidence should have been allowed by the lower appellate Court.