JUDGMENT
1. This is a decree-holder's appeal arising out of an application foe execution. A decree of the basis of a promissory note of the year 1919 was obtained by the decree-holder against the father of the present respondents. After the death of the judgmeat-debtor the decree was sought to be executed by attachment of certain properties in the hands of the sons as parsons in possession of the assets of the deceased. The sons filed objections in the execution Court pleading that they had been separate from their deceased father and that the property in their hands was their exclusive and separate property and was not liable to be attached in execution of the decree.
2. In their objections they referred to an award of 1914 followed by a decree of the Civil Court under which the family estate had been partitioned between the father and the sons. The Court of first instance relying on that award and decree allowed the objections. The decree-holder appealed from that order.
3. Before the appellate Court ha filed an application supported by an affidavit to the effect that there was a subsequent Civil Court decree of 1920 under which previous decree based on the award had bean declared to be fraudulent and fictitious. In his affidavit he stated that ha was not aware of the existence of the later decree at the time the order of the Court of first instance was passed and that he cams to know of it subsequently. The appellats Court did not pass any formal order finally disposing of the application in which it was prayed that a copy of the previous judgment should be admitted. It however in it judgment dismissing the appeal referred to the argument urged on behalf of the appellant that fresh evidence ought to b3 admitted. Id remarked that the decree-holder should have raised that question in the first Court and should have proved there that the award was fictitious. It thought that as the decree-holder had not done so the appellate Court could not take additional evidence in the Court of appeal. The appeal was accordingly dismissed on the merits.
4. A second appeal has bean preferred by the decree-holders. First of all, a preliminary objection was raised on behalf of the judgment-debtor that no second appeal lies. This contention is based on the argument that the grounds taken in the memorandum of appeal do not form good grounds for second appall. This strictly speaking is not a preliminary objection. We shall therefore, have to consider the appeal on its merits.
5. It cannot be disputed that to admit or to refuse to admit fresh. evidence in appeal is a mitter primarily in the discretion of the lower appellate Court. Where the appellant was not aware of the existence of some evidence at the time when the case was disposed of by the first Court and he has discovered some new evidence subsequently and has preferred an appeal, the proper course open to him is to apply to the appellate Court which is in possession of the case to admit the additional evidence either under the general principles of law or under the specific provisions of Order 41, Rule 27, Civil Procedure Code which lays down that an appellate Court may for "any other substantial cause" allow evidence or document to be produced or witness to be examined. This was pointed out by their Lordships of the Privy Council in Indrajit Bahadur Sahai v. Amar Singh A.I.R. 1923 P.C. 128.
6. If an appellate Court before whom an application for admitting fresh evidence is made exercises its discretion and refuses to admit fresh evidence it cannot be disputed that the propriety of that order would not be good ground for entertaining in second appeal. If however the lower appellate Court does not apply its mind to the question properly before it at all and fools that it is unable to admit fresh evidence because of some supposed insuperable difficulty in its way which, in fact, does not exist, then it cannot be said that the Court in the exercise of its discretion has refused to admit fresh evidence. In the present case the lower appellate Court thought that because the point had not been raised by the decree-holder in the Court of first instance the lower appellate Court was helpless and could not admit fresh evidence. This, of course, was an impossible position to take up. If the decree-holder had not been aware of existence of the decree of 1920 it is inconceivable how he could have raised the point that the decree passed on the award of 1914 had been declared fraudulent and fictitious. The other difficulty conceived by the lower appellate Court was that if evidence was admitted the whole case would have to be re-opened. This also was not necessarily an insuperable difficulty; such a contingency is likely to arise in many cases where fresh evidence is admitted.
7. We have therefore come to the conclusion in this case that the Court of appeal did not exercise its discretion at all. There is no remark in the judgment as to whether it believed the affidavit of the decree-holder that he was not aware of the judgment at the time the decision of the Court of first instance was passed, nor is there any formal order dismissing the application for admitting fresh evidence.
8. If it is a fact that this judgment of 1920 having regard to the pleadings of parties did finally decide that the decree based on the award was a fictitious and fraudulent decree and that, in fact, no real partition had ever been effected between the father and the sons then a very strong case had been made out for admitting this fresh evidence provided the decree-holder was not aware of its existence and had not been guilty of any gross negligence.
9. We, however, do not wish to express any opinion as to whether even if the judgment is admitted it will conclude the matter. The Court will, of course, consider as to whether, if this judgment is admitted, the opposite party should be given an opportunity of producing rebutting evidence.
10. We are of opinion that the matter has not been tried properly. We, therefore, allow this appeal and setting aside the decree of the lower appellate Court send the ease back to that Court for disposal of the, application for the admission of fresh evidence and the disposal of the appeal according to law as provided under Rules 27 and 28 of Order 41, Civil Procedure Code. The costs of this appeal will abide the event including in this Court fees on the higher scale.