KUNJA BEHARY CHAKRABARTI Vs. KRISTO DHONE MAJUMDAR

JUDGEMENT

(1.) This matter comes before us as an outcome of a rule which was issued so long ago as 8th May 1936, where, by it was ordered that the plaintiff-respondent do on Friday, 29 May at 11 O clock in the forenoon, show cause before this Court why the application of the defendant- appellant for review of the judgment and decree passed by the Appeal Court on 30 July 1934 should not be granted and why the said appeal should not be set down in the list of appeals for re-hearing and why additional evidence of witnesses as this Court may deem fit and proper should not be called at the time of such re-hearing and why the plaintiff- respondent should not pay to the defendant-appellant his costs of and incidental to this application. It was further ordered that until the hearing of the rule or until further orders of the Court the sale of the properties belonging to the defendant which had been attached should be stayed and the Registrar of this Court would communicate the order to the District Judge of Howrah in which Court the proceedings had been instituted in execution of the decree in the suit.

(2.) It is to be observed at the outset that the rule was made returnable on 29 May 1936. Apparently, very little, if anything was done to bring the matter on for hearing and with regard to that both sides are obviously in fault. This Court was actually in session on a number of days in the months of April a May, of last year and it was but proper and convenient that an application should have been made to us to fix a date for the hearing of the rule. The attitude of the defendant-appellant, who is applicant in these proceedings, can easily be understood, because he had succeeded in getting a stay from this Court which, by some oversight, was not limited to the period up to the returnable date, but was in the nature of an open stay, which prevented the sale of the attached properties for an indefinite period. It is not so easy to see, on the other hand, why the plaintiff-appellant, who is the respondent in these proceedings, should not have taken steps to have the rule discharged for want of prosecution. However the rule has at long last come before us for our final adjudication upon the matter.

(3.) The defendant who, as I have indicated, was the appellant in the appeal which came on for hearing before us and in which we ultimately gave judgment on 30 July 1934, now says that he is in a position to produce further evidence of such a character that it is bound to have an important, if not indeed a decisive, influence upon the questions which were in dispute between the parties in the suit. The suit was brought upon a promissory note which was said to be dated 30 June 1927. The defence set up was that that particular promissory note was a forgery, although the defendant had given three promissory notes to the plaintiff on three several occasions prior to 30 June 1927. An important piece of evidence called at the trial on behalf of the defendant was to the effect that he was away, in Benares or in that district, on the date the promissory note which was being sued upon is said to have been executed. That evidence was not accepted by Ameer Ali J. who tried the suit and we could find no sufficient reason to disagree with the learned Judge on that point when the matter was argued before us in the appeal. The defendant-appellant has now put in an affidavit Sworn by one Bhujendra Nath Sen on 27 May 1936. This affidavit was not before the Court at the time when the rule was issued on 8 May 1936; but in the petition which was put in before us, upon the basis of which the rule was issued there was in one or two paragraphs an indication of the kind of evidence which, it was alleged, Bhujendra Nath Sen would be able to give on behalf of the defendant if an opportunity of so doing was given him. The affidavit of Bhu-jehdra states that he was a typist in; the office of Messrs. O.C. Ganguli & Co., Solicitors of 6, Old Post Office Street in the town of Calcutta, who were the solicitors for the plaintiff in the suit, Kristo Dhone Majumdar V/s. Kunja Behary Chakrabarti, and in whose office the promissory note is said to have been executed.