In the goods of Gouri Prosad Kundu, Hemanta Kumari vs Banku Behari Sikdar

Bodilly, J.—I find from my brother Sale, J., that he has had this point frequently discussed before him and that the case Dwarka Nath v. Gunga Dayi 8 B.L.R. 102 Appendix (1872) has not been followed in this Court on any occasion. I have considered the case of Dwarka Nath Dutt. v. Gunga Dayi 8 B.L.R. 102 Appendix (1872) and feel myself unable to follow that case inasmuch as the wording of the secs. 389 and 390, sub-secs, (a) and (b), in fact the whole of see. 390, in my opinion, shews that although the copy of the evidence taken under commission has to be returned to the Court for purposes of being filed with other documents in the case, that such evidence does not become evidence in the suit until the same has been tendered by the party on whose behalf it has been taken, and read as evidence in the suit. I therefore cannot follow that case quoted to me but will follow the judgment of Sale, J., Kusum Kumari Roy v. Satya Ranjan 7 C.W.N. 786 (1902), in which the learned Judge points out that it has been the invariable practice of this Court to read that section (except in the case referred to in Nistarini v. Nundo Lal 3 C.W.N. ccxxxix (239) (1899) which was dissented from and in one other case) and rule in accordance with the ruling I have just given.