( 1 ) THE question raised in this second appeal by the defendant is an interesting one. A mortgage deed is executed. When it comes to the proof of the deed the only surviving attesting witness is not examined. Instead the plaintiff examines the lawyer who drafted the mortgage deed and helped in the execution of the deed. Admittedly, the lawyer had not signed the deed as an attesting witness. Both the courts below held the execution of the deed duly proved and also justified the absence of the attesting witness on the ground of his having been won over. The suit on the basis of the mortgage deed has been decreed by the courts below.

( 2 ) IN this appeal learned counsel for the appellant contended that the execution of the mortgage deed has not been duly proved and the evidence of other witnesses could not be looked into or relied upon by the court below unless the case came under the proviso to Section 68 or fell within the ambit of Section 17 of the Evidence Act. Learned counsel also contended that the provisions of Section 68 are mandatory and cited certain reported decisions. Learned counsel also contended that it was incumbent on the appellant to have summoned the