K. Abraham Mathew, J.

1. This appeal is at the instance of the second defendant against whom a decree for money has been passed. The plaintiff and the first defendant are respondents 1 and 2 respectively.

2. The second respondent had in his ownership a bus. On 16.8.1989 he borrowed Rs. 1,16,000/- from the first respondent agreeing to repay it in 30 monthly instalments. The appellant is said to be the guarantor. On the allegation that he and the second respondent allegedly executed a 'hire purchase agreement' and a promissory note in favour of the first respondent and defaulted payment of the instalments, the first respondent filed the suit for recovery of Rs. 1,48,440/-. The second respondent did not contest the suit. The appellant denied execution of the agreement and the promissory note as alleged in the plaint. The lower court decreed the suit directing the appellant as well as the second respondent to pay the amount claimed by the first respondent. Aggrieved by the decree passed against him, he has filed this appeal.

3. What is stated in the plaint is that the agreement allegedly executed by the appellant and the second respondent is a 'hire purchase agreement'. The allegations in the plaint show that it is not a 'hire purchase agreement', but a loan agreement. The statement that the second respondent was the owner of the bus is sufficient to show that it is only a loan transaction. The difference between a hire purchase agreement and a loan agreement is not relevant in this case.

4. In the minutes of the lower court it is recorded that on 2.4.2001 PW1 was examined and Exts.Al to A7 marked. It is seen from its judgment that the 'hire purchase agreement1 alleged to have been executed by the appellant and the second respondent was marked Ext A7 in the evidence. The document bears the exhibit seal of the court. But it is surprising to note that this document was not tendered in evidence through PW1, the only witness examined by the 1st respondent. It is not known how it happened to be affixed with the exhibit seal. Mere affixing exhibit seal does not make a document evidence in the case. Only when it is tendered in evidence and the court receives it in evidence, it becomes part of the evidence. Marking of a document is only a ministerial act. So Ext A7 which has not been made part of the evidence cannot be acted upon merely because the exhibit seal has been affixed on it. In the evidence of PW1, the first respondent, there is not even a suggestion that the appellant, or for that matter the second respondent, has executed the document. It is true that some questions regarding the document were put to the appellant, who was examined as DW1. But that is of no significance.

5. The other document allegedly executed by the appellant is Ext A1 promissory note. Its execution is specifically denied by the appellant in his written statement as well as in his evidence. The burden is on the first respondent to prove its execution by the appellant. In his examination in chief the first respondent stated that it is the defendants who have signed Ext A1 promissory note and they signed it at his office. This is only a repetition of the allegation in the plaint and is not evidence of execution of the document. Conscious of it, the learned counsel for the first respondent by asking a leading question brought out that they signed it before him. The presumption is that if the leading question had not been put, the witness would not have given that answer. The statement is not voluntary and it cannot be taken into account. Except this answer, which is only to be ignored, there is nothing in his evidence to prove execution of Ext A1 promissory note by the appellant.

6. One Sabu is said to be the scribe of Ext A1 promissory note. He was the manager of the first respondent. He has not been examined as a witness. The explanation given by the first respondent(PWl) that he was given to understand that Sabu had gone abroad is not a proper explanatio