Govinda Menon, J. - By Ex.P. 1 dated 20th March, 1926, the first defendant executed a mortgage for a sum of Rs. 2,351-9-6 in favour of the undivided father of the plaintiffs. The consideration for that document was made up of sums due under a prior promissory note executed by the first defendant and moneys due under an account. It also included a sum of Rs. 50 being the costs of an insolvency petition which the plaintiff’s father and another had filed against the first defendant. The mortgage recited that compound interest would be paid at the rate of Re. 1-0-6 per cent. per mensem with annual rests. The relevant portions of the document are as follows:

“. . . . This sum, from this date until it is paid up to you in full, shall carry compound interest at the rate of Re. 1-0-6 (one rupee and six pies) per cent. per mensem with annual rests calculated according to the Telugu calendar months and for Adhikamasams also, and the principal and interest so aggregating shall be paid up to you by me in instalments as fixed hereunder.”

In the lower Court the first defendant raised various issues such as that the mortgage deed was invalid and unenforceable, that the suit was barred by limitation, that he was an agriculturist entitled to the benefits of the Madras Agriculturists Relief Act, that the suit was barred under section 67-A of the Transfer of Property Act, and that the rate of interest was exorbitant and usurious. The learned Judge found that the mortgage bond was fully and duly supported by consideration, and was enforceable. He further held that as a result of a payment of Rs. 10 towards the principal and Rs. 10 towards interest due under the mortgage bond on 17th March, 1938, and the endorsement thereof by the first defendant on the mortgage bond, limitation was saved as there was an acknowledgment of liability and hence the suit was in time. It was further found by the learned Judge that there is no evidence that the first defendant ever owned even a leasehold interest in agricultural lands and therefore he was not entitled to the benefits of the Madras Agriculturists’ Relief Act. On issue 4 as to whether the rate of interest was exorbitant, the learned Judge found that the principal amount of Rs. 2,351-9-6 had swelled up as a result of compound interest with annual rests at the rate of Re. 1-0-0 per cent. per mensem to Rs. 24,951-15-6. He further held that on the evidence the rate of interest was excessive and that the transaction was substantially unfair between the parties. Such being the case, it was decided to give relief to the first defendant under the provisions of the Usurious Loans Act. The plaintiffs were therefore given a decree for a sum of Rs. 6,621-9-9 made up of the balance principal amount of Rs. 2,341-9-6 with simple interest at 9 per cent. per annum. Further interest and proportionate costs were also allowed. There is no cross appeal by the first defendant against the decree passed for a sum of Re. 6,621-9-9 but he has filed an application for adducing additional evidence in appeal under Order 41, rule 27, Civil Procedure Code, in order to prove that he was an agriculturist and therefore entitled to the benefits of the Madras Agriculturists Relief Act. The affidavit in support of the application does not show any sufficient or justifiable material as to why we should exercise our discretion in favour of the first defendant arid allow the documents to be admitted as additional evidence. The conditions prescribed by Order 41, rule 27, Civil Procedure Code, which have been recently explained in a judgment of the Supreme Court are conspicuous by their absence in the present case. We therefore do not feel justified in admitting the documents as additional evidence.

The appellant’s argument is based mainly on the circumstance that there was no unfairness as between the parties at the time Ex.P. 1 was executed. Both were Vysya merchants lending money to others and both knew the nature of the transaction. The evidence

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