Judgment

B. K. Mukherjea, J. - This is an appeal against a judgment and decree of a D. B. of the Allahabad H. C. dated 22-4-1943 which reversed on appeal those of the Civil Judge, Basti dated 6-11-1939.

2. The suit, out of which the appeal arises, was commenced by the pltf., whose successor the present applt. is, to recover a rum of Rs.11,935 by enforcement of & simple mtge, bond. The mtge. deed is dated 8-3-1926 and was executed by Raja Patteshwari Partap Narain Singh, the then holder of Basti Raj which is an impartible estate governed by the rule of primogeniture, in favour of Bhikhiram Sahu, the father of the original pltf. Ramdeo, [to secure a loan of Rs. 5500 advanced by the mtgee. on hypothecation of certain immovable properties appertaining to the estate of the mtgor. The loan carried interest at the rate of 9 per cent. per annual and there was a stipulation to pay the mtge. money within one year from the date of the bound. The mtgor. and the mtgee. were bath dead at the time when the suit was instituted, and the pltf. in the action was Ramdeo Sahu, the son and heir of the mtgee., while the principal deft., was the eldest son of the mtgor. who succeeded to the Basti estate under the rule of primogeniture. It was stated in the plaint that absolutely nothing was paid by the mtgor, or his successor towards the mtge. dues and the pltf. claimed the principal amount of Rs. 5500 together with interest at the rate of 9 per cent, per annum up to the date of the suit.

3. A number of pleas were taken by the non testing deft. in answer to the pltf s. claim, most of which are not relevant for our present purpose, the substantial contentions raised by the deft. were of a three-fold character. In the first place, it was urged that the document sued upon was not a properly attested or validly registered document and could not operate as a mtge, instrument in law. The second contention raised was that there was no consideration in support of the transaction, at least to the extent of Rs. 2000, which was represented by Items 3 and 4 of the consideration clause in the document. The third and the last material defence related to a claim for relief under the U. P. Agriculturists relief Act.

4. The trial Judge held in favour of the deft. on the last point mentioned above and negatived his other pleas. The result was that he made it preliminary decree for sale in favour of the pltf, for recovery of the principal sum of Rs. 5500 with interest at certain rates as are sanctioned by the U. P. Agriculturists Relief Act ; and agreeably to the provisions of that Act the decretal dues were directed to be paid in a number of instalments.

5. Against this decision, the deft. took an appeal to the H. C. of Allahabad which was heard by it D. B, consisting of Verma and York JJ. The learned Judges reversed the judgment of the trial Judge and dismissed the pltf s, suit on one ground only viz, that the bond was not attested in the manner required by law and consequently could not rank as a mtge, bond ; and as the suit was instituted beyond 6 years from the date of the bond, no money decree could be claimed by the pltf.

6. It is against this judgment that the pltf. has come up on appeal to this Ct., and the man contention raised by the learned Attorney-General, who appeared in support of the appeal, is that in arriving at its decision on the question of attestation, the H. C. approached the matter from a wrong standpoint altogether and on the materials in the record it had no justification for reversing the findings of the trial Ct. on that point.

7. The question for our consideration is undoubtedly one of fact, the decision of which depends upon the appreciation of the oral evidence adduced in the case. In such cases, the appellate Ct. has got to bear in mind that it has not the advantage which the trial Judge had in having the witnesses before him and of observing the manner in which they deposed in Ct. This certainly does not mean that when an appeal lies