( 1 ) ). The appellant has questioned the legality and validity of the judgment and decree passed in Civil Suit No. 1007 of 1973, in favour of the respondent-original plaintiff, by City Civil Court, at Ahmedabad, on 9/09/1976, by invoking the provisions of Sec. 96 of the Code of civil Procedure ("code" for short ).

( 2 ) ). The respondent filed the above suit against the appellant, for the recovery of money on the basis of a promissory note. The parties are hereinafter referred to as "plaintiff" and "defendant" for the sake of convenience and brevity.

( 3 ) ). The plaintiff, by filing the above suit, claimed an amount of Rs. 5,350. 00, contending that the defendant, who was carrying on the business of provision store, had executed a promissory note of Rs. 5,000. 00, on 16-8-1972, as he required funds for his business. The defendant, in his written statement. Ex. 22, inter alia, contended that he had not executed the questioned promissory note. It was also alleged that, the plaintiff forged the said promissory note, at Ex. 33, by re-using the signed four revenue stamps on another promissory note, which was satisfied. A revenue stamp, known as refugee stamp, was also alleged to have been subsequently affixed. He also questioned the liability for payment of interest at the rate of 12 per cent per annum.

( 4 ) ). Pursuant to the pleadings of the parties, issues came to be framed, at Ex. 24. Upon analysis and examination of the evidence adduced by the parties in the course of the proceedings, the trial Court reached to the conclusion that the defendant had executed the questioned promissory note, Ex. 33, and the plaintiff is entitled to recover the amount of promissory note with interest at the rate of 6 per cent per annum from the date of the suit till realisation with costs and passed the decree. Hence, this appeal.

( 5 ) ). Having examined the facts and circumstances and the evidence emerging from the record of the present case, the impugned judgment and decree are not sustainable and supportable. The observations of the trial Court with regard to the execution of the promissory note, at Ex. 33, with due respect, are not proper and sustainable. The trial Court has also seriously erred in appreciating the evidence on record.

( 6 ) ). Apart from other evidence on record, a plain perusal of the questioned promissory note, at Ex. 33, indicates that, the four revenue stemps of denomination of 10 paise each must have been affixed after the earlier signature of the defendant thereon. The manner and mode in which the signature of the defendant is made on the four revenue stamps and the type and the pattern in which the same are affixed on the questioned document, undoubtedly, leads to an unerring and only inference that the same must have been reused. It is not in dispute that the parties had previous transactions. The plaintiff appears to be a money lender. It is an admitted fact that the plaintiff used to advance and the defendant used to take loan, in past. The contention of the defendant that, he has not executed the promissory note, Ex. 33, and that, signed four revenue stamps are re-used by the plaintiff thereon is fortified from the set of surrounding facts and circumstances, and the evidence on the record of the present case.

( 7 ) ). The plaintiff placed reliance on his evidence as well as the evidence of his uncle-Gulabrai, at Ex. 39. The defendant relied on his evidence as well as on the evidence of one Advocate, Mr. R. N. Giriani. The evidence of the defendant and his witness, Advocate Giriani, is not believed by the trial Court and the trial Court has committed serious error in discarding the evidence of the defendant and his witness, Advocate Mr. Giriani. Upon a close scrutiny of the evidence on record, it becomes evident that the plaintiff has failed to show that the defendant had executed the questioned promissory note, at Ex. 33, dated 16-8-1972.

( 8 ) ). No doubt, the witness of the defendant, Mr. Giriani, exa