MUNSHI LAL Vs. MANGAT RAI

JUDGEMENT

(1.) THIS appeal arises out of a suit on foot of a mortgage. The mortgage was executed by Govind and others. The suit is a suit (for sale of the mortgaged property) against the sons of Govind, who is now deceased. Both Courts below have dismissed the suit, first, upon the ground that the mortgage was not proved to have been executed according to the provisions of the Transfer of Property Act and, secondly, on the ground that no legal necessity was proved. As to the first point, it is contended that the plaintiff should have had a further opportunity of proving the due execution of the bond. The Court below has dealt with this point and, in our opinion, the plaintiff ought to have come prepared to prove his case. We have looked into the record and we see that it never was suggested that the witness who was produced to prove the bond went back on his previous evidence or had committed perjury. He proved the plaintiff s case prima facie, but when he was cross-examined as to the particular mode in which he had witnessed the bond, the fact was disclosed that he had not seen the executants actually sign. The finding that there was no legal necessity, is a finding of fact and is equally fatal to the plaintiff s suit as against the sons of Govind. It is contended that we ought to grant at least a simple money-decree. There are several objections to this. In the first place, the suit was a suit for sale of mortgaged property. In order to give a simple money-decree, we should either amend the plaint or treat the plaint as amended. It is not a suit for money. In the next place it is sought now to get a simple money-decree (not against the original executant) but against his sons. THIS would be an entirely new cause of action in which there might be entirely different defence. In our opinion, the findings of fact conclude the appeal. It is accordingly dismissed.