1. This is an appeal by the plaintiffs in a suit on a mortgage of 10th December 1883. The defendants originally impleaded were the mortgagor, Shaukat Ali, and a number of other persons alleged to be transferees of the mortgaged property, or at any rate persons in actual possession of the same. Shaukat Ali has died during the pendency of the litigation and his heirs have been brought on the record in his place; but no appearance has been entered or defence set up by or on behalf of the original mortgagor. The suit was contested by the other defendants. They formally put the plaintiffs to proof of the execution of the mortgage deed and of the passing of consideration. Their substantial defence on the merits was that Shaukat Ali, on the date of the mortgage either possessed no interest at all in property purporting to be dealt with under the said deed, or at most possessed an interest in a fraction only of the said property, and this interest encumbered by some prior charge or charges in favour of the contesting defendants. There was also a plea as to the alleged insanity of one of the defendants. This was finally disposed of by the decision of the first Court on the seventh issue framed by it. Of the remaining six issued the learned Subordinate Judge tried only the first. He found that the dead in suit had been duly executed by Shaukat Ali, but that the payment of consideration was not satisfactorily proved. His judgment is dated 10th July 1911.

2. The plaintiffs appealed, and their appeal was determined by a Bench of this Court on 15th January 1913. In the interval the famous ruling of their Lordships of the Privy Council in Shamu Patter v. Abdul Kadir Rowthan (1):

“had enlightened the Courts in this part of India as to the true force of the provisions of Section 69 of the Transfer of Property Act (4 of 1882) regarding the “attestation” of instruments of mortgage.

3. It is to be note that the appeal before this Court (First Appeal No. 315 of 1911) was by the plaintiffs; they simply asked for a reversal of the finding of the first Court as to the passing of consideration. It was, however open to the successful defendants to support the decision of the first Court on the ground which had been decided against them. They could have asked this Court to reconsider the whole of the evidence on the question of execution; and they could undoubtedly have raised the point that even if the said evidence were held sufficient to prove that the signature on the deed in suit was that of Shaukat Ali, it was not proved that this signature had been affixed in the presence of two attesting witnesses. The record shows that no such plea was taken on behalf of the defendants-respondent the learned Judges of this Court disposed of the appeal by determining the one and only question raised before them, that of the passing of consideration. They reversed the finding of the first Court on this point, held that the payment of consideration was proved, and remanded the case to the first Court under the provisions of O. 41, R. 23 of the CPC, to be re-admitted to its original number in the register, and disposed of according to law.”

4. The effect of this order is the principal point which we have to consider and determine in order to dispose of the appeal now before us. It seems worth while to say at once that we do not consider it part of our functions to criticise this order, as for instance by discussing the question whether an order under R. 25, O. 41 of the CPC, might not have been passed by our learned predecessors, instead of one under R. 23. What we are concerned with is the meaning and effect of the order actually passed, and we conceive that we are bound to put a broad and reasonable interpretation on the said order and to insist upon due effect being given to the same as governing the subsequent course of the litigation. Looking at the matter from this point of view, we find no difficulty in appreciating the position taken up by our learned predecessors. They regarded the pleas taken as to proof of execution and passing of consideration as merely formal and the decision on these points as “preliminary” to the trial of the substantial questions involved in the remaining issues dealing with the extent of the mortgagor's interest in the property dealt with by him. They saw no reason to distrust the direct and positive evidence by which the plaintiffs proved that Shaukat Ali had not merely executed the bond in suit, but had received the consideration in cash at registration.

5. These “preliminary points” being determined in the plaintiffs' favour there remained for disposal a number of issues bearing on the extent of Shaukat Ali's interest in the property which he purported to mortgage. We have no doubt that the true effect of this Court's order of January 15th, 1913, was simply to send back the case to the first Court to have these issues tried.

6. If we are right in this opinion, it follows beyond question that this order has not been complied with according to its spirit and intention. The case came before a successor of the learned Subordinate Judge who had first decided it. He asked the parties if they desired to produce any further evidence, and they replied that they did not. The case was then set down for arguments and for disposal on the evidence as it stood. At the hearing which followed, the defendants for the first time raised the point that the plaintiffs' evidence, while sufficient to prove the signature on the deed in suit to be Shaukat Ali's, fell short of proving that he had affixed this signature in the presence of two attesting witnesses. The learned Subordinate Judge felt grave doubts as to whether he ought to entertain this plea; but decide to do so. He then considered the evidence. The plaintiffs had fully complied with the provisions of the Indian Evidence Act: they had put in the witness-box the sale survivor of the attesting witnesses. His evidence, on any reasonable interpretation of the same, does prove that Shaukat Ali signed the deed in his presence; but he does not say, that any of the other attesting witnesses was also present at that moment. He was not asked any question on this point the plain fact is that no one thought of putting questions of this sort to an attesting witness before the strict meaning of the word “attestation” was expounded by their Lordships of the Privy Council.

7. The other witness for the plaintiffs was present at the registration of the document, but not at its execution. On this evidence the Court below has found that the plaintiffs have failed his prove due “attestation” of this document; that it has consequently no effect as a legal mortgage, and that the suit must fail on this ground alone, the limitation period for enforcing the personal liability of the executant having long since expired. The plaintiffs having again appealed to this Court, we hold, for reasons which we have already made sufficiently clear, that it was not open to the Court below to dismiss the suit a second time on such grounds as the above. To do so was in effect to re-open one of the “preliminary points” which this Court had held to be concluded in favour of the plaintiffs. The learned Subordinate Judge should have been content to comply with this Court's order of January 15th, 1913, and we can only repeat that, in our opinion, he has not done so.

8. This makes it unnecessary for us to discuss the further question whether, under the circumstances stated, the Court below ought not to have offered the plaintiffs a definite opportunity of further examining the surviving attesting witness, or of producing other evidence on this specific point. It may perhaps be contended that even the conclusions hitherto reached by us do not dispose of the present appeal. Our own position is not quite the same as that of the Subordinate Judge; we are seized of the whole case, and responsible for its correct decision at this stage. We have not been asked to re-consider the finding of our predecessors on the question of the payment of consideration, and need not therefore discuss the question whether we could have done so. The real question is whether we could or ought, at this present stage of the litigation, to treat the question of the legal attestation of this document as an issue not yet disposed of, and to proceed to deal with it on that basis. We are of opinion that we ought not to do so. The practical inconvenience of an order calling for fresh evidence on this specific point, after all that has occurred, is obvious and need not be enlarged upon.

9. The technical plea of want of due attestation, in the form in which it is now put forward, is a new one, and we think it ought to be treated as a plea put forward for the first time in appeal. Indeed it is overstating the case in favour of the defendants to put it in this way. There might have been something to be said in favour of remitting an issue on this specific point if the question had been raised before the Bench which passed the order of January 15th, 1913. The defendants not having raised, the point then, we think, they should be held to be precluded from taking it at a subsequent stage of the same litigation. This opinion may be based upon constructive application of the principles of res judicata on lines analogous to those laid down by the highest authority in the case of Ram Kirpal v. Rup Kuari (2), or it may be rested simply on the general discretion of an appellate Court in dealing with, a substantially new pleading taken for the first time in appeal and not admitting of satisfactory disposal without the recording of-fresh evidence. From either point of view the question must, in our opinion, be decided against the respondents.

10. For these reasons, we set aside the decree of the Court below. We again remand the case to that Court in order that our predecessor's order of January 15th, 1913, may be given effect to according to its true purport and intention. The suit must be tried out on the merits, that is to say on the remaining issues raised by the pleadings, the questions of the valid execution of the deed in suit, of its effect as an instrument of mortgage and of the payment of consideration being treated as preliminary points finally decided in favour of the plaintiffs. We think the appellants are entitled to the costs of this appeal, and we order accordingly, such costs to include fees on the higher scale.

V.B/R.K

11. Case remanded.