DHIRAJUDDIN BEPARI Vs. BAHARULLA SHEIKH

JUDGEMENT

(1.) This appeal arises out of a suit to enforce a mortgage-bond executed by the defendant No. 1 in favour of the plaintiff on the 2 April, 1909. The amount secured by the bond was Rs. 400 and the total amount claimed was Rs. 1,000. The plaintiff's suit was resisted by defendant No. 2 who was a subsequent purchaser of the mortgaged property. He contended that the bond was collusive and without consideration. The defendant No. 1 in his written statement pleaded part payment. He did not, however, appear at the trial to contest the suit.

(2.) The Court of first instance dismissed the plaintiff's suit holding that the transaction was not a real one and that the plaintiff had not proved the execution of the mortgage.

(3.) The plaintiff appealed and on appeal the learned Subordinate Judge admitted certain additional evidence, namely, the statement of one Arabuddin who was the writer of the mortgage-bond and whom the plaintiff desired to examine on commission in the lower Court on the ground that he was ill but that application was refused by the learned Munsif. There was also an application to admit in evidence a certain order of the Sub-Divisional Officer of Gaibandha. On a consideration of this evidence and of the evidence adduced in the Trial Court the Subordinate Judge decreed the appeal with costs.