Law:

Section:

Civil Procedure Code (V of I908)-------O.XXXVII, Rr.2 & 3---Negotiable Instruments Act (XXVI of 1881), S.118---Suit for recovery of amount on basis of pro note---Leave to appear and defend suit---Case of plaintiff was that he had business dealings with the brother-in-law of defendant and suit amount was due from the brother-in-law and that defendant in consideration of amount due from his brother-in-law, had executed pro note in question---Suit having been decreed, defendant had filed appeal against and decree of the Trial Court---Execution of pro note had fully been proved on the record by the witnesses and the report of Handwriting Expert---No doubt presumption was that pro note was executed for consideration as was the import of law embodied in S.118 of Negotiable Instruments Act. 1881 but such presumption was rebuttable---Admittedly no consideration was paid to the defendant in the facts and circumstances of the case---Allegation was that there was some liability owed to plaintiff by brother-in-law of the defendant, but there was no specific finding to the effect that such liability stood established on record---Details and nature of such liability were conspicuous by their absence in evidence produced on record on behalf of plaintiff in rebuttal of a denial of consideration by defendant on oath when he appeared as a witness---No specific issue in that regard had been framed which had resulted in the prejudice to both the parties who did not produce evidence to prove/disprove consideration for the pro note in question---Judgment of the Trial Court, in circumstances could not sustain and the matter needed to be decided afresh, particularly with reference to the payment of consideration, if any, of the pro note in question---Accepting appeal impugned order of the Trial Court was set aside by the High Court and case was remanded to the Trial Court to decide question of consideration, if any, of the pro note. ORDER This appeal is directed against the judgment and decree, dated 7-10-2004. 2. Facts in brief giving rise to this appeal are that respondent filed a suit under Order XXXVII, rule 2, C.P.C. for recovery of Rs. four lacs on the basis of a pro note…

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