DIBAKAR NAG Vs. MRITTUNJOY BHATTACHARYA

JUDGEMENT

(1.) This was a suit upon a mortgage. The lower Court found that no consideration passed, and accordingly dismissed the suit.

(2.) In appeal it is argued that the learned Subordinate Judge omitted to consider a certain document marked Exhibit E, which was a mortgage executed about four years later and contained an admission by the defendant that he had borrowed Rs. 400 under the mortgage in suit. No reference is made to this document in either of the judgments of the Courts below. The learned Sub-Judge says: "I think what the defendant says in his deposition is true," In order to see what the defendant says we have looked at the deposition; and we find that this admission was never put to the defendant himself.

(3.) There is considerable conflict of judicial opinion on the point whether a second appeal will lie when the lower Appellate Court omits to consider evidence, or misreads, or misconstrues evidence. In the present case all we think it necessary to say is that, in our opinion, the omission of the learned Subordinate Judge to make specific mention in his judgment of this particular Exhibit and the statement contained in it does not amount to a substantial error or defect in procedure within the meaning of Section 100 of the Code of Civil Procedure.