JUDGMENT
Coutts, J.
1. This appeal arises out of a suit on a mortgage bond which was in the first instance decreed ex parte. On appeal the decree was affirmed by the Subordinate Judge. The only witness examined in the case was the scribe of the bond. There were, however, four attesting witnesses, one of whom, namely, the defendant No. 2, was alive. He was neither summoned nor examined by the plaintiff, and the first point taken in this appeal is that under the provisions of Section 68 of the Evidence Act it was incumbent on the plaintiff to call this attesting witness, even although he might be a defendant. Section 68 requires that a document which is required by law to be attested shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, and Section 71 enacts that if the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence.
2. A case on all fours with the present case is that of Tula Singh v. Gopal Singh 38 Ind. Cas. 604 : 1 P.L.J. 389 : 2 P.L.W. 353. In that case the learned Judges decided that Section 68 of the Evidence Act was imperative and so long as there was a witness alive and subject to the process of the Court, no document which is required by law to be attested can be used in evidence until such witness has been called. The fact that, when sailed, he will prove hostile, does not excuse the party producing the document from this duty. The learned Subordinate Judge was, therefore, wrong in thinking that it was not necessary to call the defendant No. 2.
3. In addition to this the learned Subordinate Judge has wrongly considered that because the defendant No. 2 signed the bond in this suit as an attesting witness he is bound by the recitals in it. It has been decided in a very large number of cases that this is not the correct view of the law. Accordingly for both these reasons I would set aside the decree of the Subordinate Judge and would decree this appeal with costs.
Macpherson, J.
4. I agree.