Gaya Singh and Others vs Name Singh add Ors.

B.K. Mullick, J.—The plaintiffs sued the defendants for a money decree on the allegation that although the defendants had executed an usufructuary mortgage in respect of some property, the plaintiffs had been dispossessed from that property by the act of the defendants.

The first Court gave a decree against the defendant?.

On appeal to the District Judge by the defendants the learned District Judge was of opinion that the mortgage bond should be proved by an attesting witness and though the plaintiffs had by inadvertence not called an attesting witness, he decided under Order XLI, rule 27, Civil Procedure Code, to take the evidence of such a witness himself.

The defendants thereupon name to this Court and obtained a Rule for the interference of the Court u/s 115, Civil Procedure Code.

It is quite clear that there is no question of jurisdiction involved. Jurisdiction must be distinguished from power, and in this case the learned District Judge had full jurisdiction to hear the appeal, if he has made a mistake in law in directing evidence to be tendered before him which be was not competent to receive in accordance with the provisions of the Civil Procedure Code, he has committed an error of law, but that will not give the defendants the right to invoke the interference of this Court u/s 115, Civil Procedure Code, The order is one which, in my opinion, cannot be revised under that section.

Whether the order itself is right or wrong, is a different matter. It does seem that prima facie, the District Judge is not competent to call for evidence under Order XLI, rule 27, which the party, if he had been diligent, might have produced in the lower Court; but we cannot express any opinion upon this point and the admissibility of the evidence, if and when taken, will have to be judged at the hearing of the appeal before the learned District Judge.

The defendants will be entitled to submit that the evidence, not being admissible under the provisions of the Code, should be expunged from the record in the hearing of the appeal.

The application is dismissed with costs. Hearing fee one gold mohur.

Sultan Ahmed, J.

I agree.