SETH MAGANMAL Vs. DARBARILAL CHOWDHRY

JUDGEMENT

(1.) This is an appeal from a judgment and decree of the Court of the Judicial Commissioner of the Central Provinces, which reversed a judgment and decree of the Subordinate Judge of Damoh in a suit which was filed on December 11, 1916 in order to enforce a mortgage executed by the defendant on March 5, 1913.

(2.) The case has been tried under peculiarly unsatisfactory circum-stances. The plaint was registered on January 2, 1917. No written statement was filed, but only oral statements of the pleaders on both sides recorded, and issues were framed on these. Lord Sinha The evidence was heard from time to time and at long intervals, and appears to have taken altogether a period of nearly three years. Judgment was pronounced by a Subordinate Judge who had not heard any of the -witnesses except two, and even of these one had been partly examined by his predecessor in office. The result is that in a case which entirely depends upon questions of fact, neither of the Courts dealing with the case had the benefit of seeing the witnesses and had to appreciate the evidence recorded by another Judge. Under these circumstances their Lordships are unable to attach the same importance as they otherwise would to the findings of fact of the trial Court, and it is necessary that they should feel convinced that the judgment of the Judicial Commissioner under appeal is wrong before they can advise that it should be set aside.

(3.) The plaintiffs alleged that the defendant executed the mortgage in question after having received the sum of Rs. 7,000 in cash, and they prayed for the usual mortgage decree.