SATISH CHANDRA MITRA Vs. JOGENDRA NATH MAHALANOBIS

JUDGEMENT

(1.) This was a suit upon a mortgage bond. The defendant No. 1 was the executant of the mortgage and the other defendants derived title to the mortgaged property subsequently by execution and certificate sales. The defendant No. 1, executant of the document, admitted the mortgage-deed and the first Court gave a decree on the basis of the mortgage.

(2.) It appears that defendants Nos. 3 to 5 made an attempt to have the case postponed for the purpose of getting an order of transfer of the case to the Court of the Sub-Judge for trial with another suit in the same matter. Before the order of the District Judge on the application for transfer was recorded the case was disposed of by the learned Munsif, Upon appeal, the learned Sub-Judge remanded the case holding that the document, that is, the mortgage-deed, had not been proved by the examination of any of the attesting witnesses as required by Section 68 of the Evidence Act.

(3.) On appeal, it is contended before us that the order of the learned Judge below is wrong, in that Section 70 of the Evidence Act provides that the admission of a party to an attested document of its execution by himself shall be sufficient proof of its execution as against him, though it be a document required by law to be attested and that, therefore, it was not necessary to prove the attestation of the document.