Section 14 of the Notary Act, 1952, requires reciprocal arrangements for recognizing notarial acts done by foreign notaries, and in the absence of such arrangements, the power of attorney executed in Bangladesh was not valid and applicable in India.

Siddhartha Chattopadhyay, J.

1. Challenging the legality and validity of the Order No. 111 dated 06.05.2014, passed by the learned Civil Judge, (Senior Division) at Jangipur, in Partition Suit No. 66 of 2000, the present petitioner/plaintiff has filed this application on the ground that the learned Court below has come to an erroneous finding treating the alleged power of attorney, which was admittedly executed in Bangladesh, is legal and applicable in India. The learned Court below has also directed the said power of attorney holder to deposit Rs. 550 for the purpose of impounding the same under Section 33 of Indian Stamp Act.

2. In the revisional application, the plaintiff/petitioner specifically contended that the learned Trial Judge has mechanically passed the impugned order and failed to appreciate that the said alleged power of attorney holder had no authority to file an application under Section 47 of the Code and have no locus to file an application under Order 1, Rule 10 (2) of the Code. He further contended that question of authentication by the Indian Embassy is a paramount consideration, and since no authentication has been done by the said Embassy, the said alleged power of attorney cannot be treated as legal.

3. On perusal of the Order dated 06.05.2014, I find that the learned Court below held that since the power of attorney was executed outside India and a used in India, he shall liable to pay stamp duty under the Indian Stamp Act, but the learned Court below never considered that the said unregistered power of attorney was executed in Bangladesh and if it requires authentication or not.

4. At the time of hearing, learned Counsel appearing on behalf of the opposite party contended that the impugned order does not call for any interference since under Section 85 of the Indian Evidence Act, it is very much permissible and shall be admitted in evidence also. After hearing the rival submission of the parties it seems to me that the main grievance of the petitioner is such that the said power of attorney cannot be given effect to.

5. On perusal of Section 85, I find that the Court must presume that a power of attorney by a public notary or any Court, Indian Consul or representative of the Central Government was validly executed and authenticated. Similarly under Sub-Section 6 of Section 78 any public document of any other class in a foreign country can be proved by producing the original or by a copy certified by the legal keeper thereof with a certificate under the seal of a notary public. It is thus evident that a rebuttable presumption is there. Learned Counsel appearing on behalf of the petitioner also submitted that notarial certificate issued by the notary of Bangladesh Court has no sanctity or validity in the eye of law as the same was not authenticated by the Indian Consul in terms of the provisions of Section 14 of the Notary Act, 1952 read with Section 85 of the Indian Evidence Act 1872. The Counsel submitted that under Section 85 of the Indian Evidence Act, there is a presumption that the Court shall presume every document purported to be power of attorney and to have been executed before, authenticated by, a notary public or any Court Judge, Magistrate, Indian Consul or Vice Consul or the representative of the Central Government, was also executed and authenticated.

6. Let me examine the alleged power of attorney. The power of attorney appears to have been notarized by one Md. Sahidur Rehman Ali and Md. Hitlar Uddin, an advocate has endorsed it. The said notary and its endorsement speaks that it was executed at Chapai Nababganj, Bangladesh and it was also endorsed by Mohammed Hitlar Uddin advocate.

7. After hearing the submission made by the parties it seems to me that only issue which requires consideration is whether the deponent has been able to satisfy this Court that they were duly authorised by Md. Naziruddin Sk. and Abdul Gafur. A question therefore arises as to whether this Court can recognise