ORDER

1. This revision arises out of a suit for recovery of money on foot of a promissory note instituted in the Court of the Judge, Small Cause Court at Allahabad. The promissory note is alleged to have been executed by the defendants for a sum of Rs. 500 and Provides for the repayment of the loan, on demand, with interest at 4 per cent per mensem. The defence was that the execution of the promissory note was admitted by the defendant not subject to additional pleas. The further pleas were to the effect that defendant 2 never borrowed any money, nor did she execute any promissory note, that the promissory note was inadmissible in evidence, for want of proper stamp duty, that defendant 1 borrowed Rs. 50 only and that that was the only consideration that passed.

2. The learned Judge, Small Cause Court, tried only one issue, namely the one as to the admissibility of the document in. suit in evidence and holding that it was inadmissible, dismissed the suit.

3. It appears that the suit was once heard and decreed ex parte. At the defendants' instance, the ex parte decree was sat aside and the suit was restored to its original number in the register and was tried de novo. When the suit was heard ex parte, the then learned Judge, overlooking the fact that the promissory note in suit required a stamp duty of two annas admitted the document into evidence. It bore a stamp duty of one anna only. It was contended on behalf of the plaintiff that as the document had once been admitted into evidence, it was not open to either party to question the sufficiency of the stamp duty at subsequent stages of the suit, in view of the provisions of Section 36, Stamp Act. On this point, the learned Judge, Small Cause Court held and in our opinion rightly, that with the setting aside of the ex parte decree, the order admitting the document into evidence, on the basis of the ex parte evidence, also fell and the Court had to adjudicate on the case, including the question of the admissibility or otherwise of the document, as if it had never been admitted into evidence at all. The view of the learned Judge is in agreement with the case of Webster v. Bosanquet [1912] A.C. 394.

4. The main question however in the case is whether the promissory note being inadmissible in evidence, the plaintiff could rely on the factum of the loan and prove the loan, independently of the document in suit.

5. On this point there is a number of conflicting cases decided by different High Courts. It appears that while all the Courts are agreed that where a plaintiff has a cause of action, independently of a promissory note, which is found inadmissible in evidence, he can sue on the cause of action which he had before the promissory note was given and recover. Opinion is divided as to what should be the case where there was no loan, independently of the promissory note, that is to say, where the entire contract between the parties is embodied in the promissory note. As at present advised, we are of opinion, that Section 91, Evidence Act, would prevent the admission of any oral evidence to prove the loan, the promissory note being inadmissible in evidence

6. Some of the cases, whether decided in this Court or in other Courts, do not, in our opinion, with all respect, take sufficient note of the provisions of Section 91, Evidence Act, and follow the English authorities : see Farr v. Price 1 East 55. Our law being codified, in our opinion, it is not open to the Courts in India to ignore the enacted law and follow the English law, simply because in certain cases the enforcement of the, law might appear to create a hard case.

7. Being in disagreement with the cases decided in this Court, we are of opinion that the case should be referred to a larger Bench. We do not propose to discuss the case law in our order. It will be sufficient to say that the case of In Re: Section 25, Paper Currency Act (10 of 1923) has no bearing on the case. The latest case of this Court is that of Ram Sarup v. Jasod