JUDGMENT : Barman, J. - In this second appeal the sale Defendant is the Appellant from a decision of the learned Additional Subordinate Judge, Puri, setting aside a decision of the learned Additional Munsif, Puri, in a mortgage suit filed by the Plaintiff against the Defendant. 2. On May 30, 1945 the Defendant borrowed from the Plaintiff Rs. 100/- on mortgage of certain land, interest payable being 12 per sent per annum, the period of redemption provided in the mortgage deed being one year. Upon the failure of the Defendant to repay the loan the Plaintiff on May 11, 1953 filed the mortgage suit. The Defendant in his written statement resisted the claim of the Plaintiff. The Defendant pleaded that he had originally pledged gold and silver ornaments with the Plaintiff as "security for a loan of Rs. 50/- which the Plaintiff had advanced to him. The Plaintiff wanted further security and there upon the Defendant executed the mortgage bond in suit. The Defendant also pleaded that the suit mortgage bond had not been legally executed. 3. The learned Additional Munsif on appreciation of the evidence produced before him found that there was no consideration for the mortgage bond and accordingly he dismissed the suit. The learned Additional Subordinate, Judge in appeal while reversing the decision of the learned Additional Munsif found that consideration passed in respect of the said mortgage and that the mortgage bond was properly executed and registered. In that view of the matter the learned Additional Subordinate Judge decreed the suit in favour of the Plaintiff. Hence this second appeal. 4. Mr. N. Mukherji, learned Counsel appearing for the Defendant-Appellant, contended that the alleged legal execution of the mortgage bond was denied in the written statement and the mortgage bond therefore is not admissible in evidence. Section 59 of the Transfer of Property Act requires a mortgage to be attested by two witnesses. In the present case the attesting witnesses are stated to be P.W. 2 Jaykrishna Misra and one Binoy Chandra Dasgupta, Jaykrishna Misra, P.W. 2 in his evidence stated that the Defendant did not sign in his presence. The other attesting witness was not examined. The scribe P.W. 2 was examined. He also could not prove the attestation of the document. In the present case the attesting witnesses are stated to be P.W. 2 Jaykrishna Misra and one Binoy Chandra Dasgupta, Jaykrishna Misra, P.W. 2 in his evidence stated that the Defendant did not sign in his presence. The other attesting witness was not examined. The scribe P.W. 2 was examined. He also could not prove the attestation of the document. Section 3 of the Transfer of Property Act interprets the word 'attested' in relation to an instrument to mean attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument etc. The learned Counsel contended that the document was not legally attested as required by law. In this context he also relied on the proviso to Section 68 of the evidence Act which provides that if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for proving its execution provided that it shall not be necessary to call an attesting witness in proof of the execution of the document unless its execution by the person by whom it purports to have been executed is specifically denied. The effect of the proviso to Section 68 of the Evidence Act is that the said section will be no bar to the admissibility of a document if its execution has been admitted. The proviso in terms will apply if execution is admitted. In the present case it is sought to be argued that the word 'execution' means mere signing of the document and does not necessarily mean legal execution in compliance with all the formalities as required by law. 5. The whole point is whether on the strength of paragraphs 5 and 6 of the written statement the alleged admission by the Defendant of such legal execution can be spelt out. Paragraph 5 alleges that the mortgage bond was not executed according to law; whereas in paragraph 6 the Defendant alleges that the mortgage bond had been executed by him without receiving consideration. Reading paragraphs 5 and 6 of the written statement together it is reasonably contended on behalf of the Defendant that the legal execution of the document was denied in the written statement. 6. Reading paragraphs 5 and 6 of the written statement together it is reasonably contended on behalf of the Defendant that the legal execution of the document was denied in the written statement. 6. On this point the learned Counsel relied on a decision of the Oudh High Court in Kali Charan v. Suraj Bali and Ors. AIR 1941 Oudh 89 . Where it was held that the word 'execution' as used in the proviso to Section 68 in the case of a mortgage bond means and includes not only the signature of the executant but the whole series of acts or formalities which are necessary to give the document validity as a mortgage. It appears that the Oudh High Court relied on an earlier decision of the Calcutta High Court in Hare Krishna Panigrahi Vs. Jogneswar Panda and Others, where B.K. Mukherjee J. held that the word 'execution' as used in the proviso to Section 68 in the case of a mortgage bond which under the law requires attestation, means and includes not only the signature of the executant but the whole series of acts or formalities which are necessary to give document validity as a mortgage. This includes attestation, and where atte'station is expressly denied the mortgagee is not exonerated from the duty of complying with the provision of Section 68 by calling an attesting witness. In such a case it is the duty of the Plaintiff to exhaust all the processes of the Court in order to compel the attendance of any one of the attesting witnesses and when the production of such witnesses is not possible either legally or physically, the Plaintiff can avail himself of the provisions of Section 69 of the Evidence Act. The Madras High Court in E.Su. Na. Sheikh Davood Rowther and Others Vs. N.R.M.N. Ramanathan Chettiar and Others, held that the execution contemplated by Section 70 is not a mare signing of the document, but a due execution or execution in accordance with what the law requires for a particular document. What Section 70 says is that there must be an admission of a party to the attested document. 'Attested' in that section means duly attested. So, if a question of attestation is put in issue, it is incumbent upon the party wanting to prove the document that the document has been duly attested before Section 70 can be relied on. What Section 70 says is that there must be an admission of a party to the attested document. 'Attested' in that section means duly attested. So, if a question of attestation is put in issue, it is incumbent upon the party wanting to prove the document that the document has been duly attested before Section 70 can be relied on. This was the stand taken by the Defendant in the present appeal. It appears from the document that the said Binoy Chandra Dasgupta did not sign as an attesting witness. No explanation has been offered on behalf of the Plaintiff to explain these unusual circumstances. There having thus been no legal proof of the mortgage bond on which the Plaintiff filed the suit the document was not admissible in evidence and so according to the Defendant the Plaintiff's claim must fail. 7. Mr. Sadasiv Misra, learned Counsel for the Plaintiff-Respondent, contended that no issue was raised on this point not taken by the Defendant, during the trial of the suit before the learned Additional Munsif. The Defendant thus did not give notice to the Plaintiff that he was required to prove attestation of the document. The learned Counsel relied on the circumstance that the document Ext. 1 was marked and tendered 'on admission' and therefore further proof of attestation was not necessary. In this context he also relied on the evidence of the Plaintiff Purna Chandra Misra P.W. 1 who proved the document to have been executed by the Defendant in his favour. It appears from his evidence that he said that the Defendant received the money and gave his signature and thereafter the attesting witnesses signed on the bond. This is no evidence of attestation as required by law. The Defendant P.W. 1 in his evidence said that the Plaintiff advanced loan of Rs. 50/- the day following the execution of the mortgage bond Ext. 1. D.W. 2 Jaykrishna Misra who was one of the attesting witnesses to Ext. 1 said that the consideration money was not paid in his presence. He said that the parties came to his residence with Ext. 1 and asked him to attest the document. The witness further said that the Defendant did nut sign in his presence. 1. D.W. 2 Jaykrishna Misra who was one of the attesting witnesses to Ext. 1 said that the consideration money was not paid in his presence. He said that the parties came to his residence with Ext. 1 and asked him to attest the document. The witness further said that the Defendant did nut sign in his presence. In cross-examination he said that he signed the document with the pen and ink-pot supplied by the parties and did not raise any objection to the non-signing of the document by the Defendant. In this state of the evidence it is quite clear that the mortgage bond was not legally executed in compliance with the formalities required by law such as attestation etc. and as such it is not admissible. 8. A point of limitation was also taken on behalf of the Defendant. If the document by reason of non-attestation is not admissible in evidence then the document is not a mortgage bond. Then the period of limitation for a suit on the document as a registered instrument would be six: years under Article 116 of the Limitation Act. The due date of re-payment being one year from the date of the bond namely May 30, 1945, the time limit for institution of the suit would expire on May 30, 1952. The suit was filed 1st May 11, 1953 and therefore the suit was barred by limitation. But the question is that the point of limitation will depend on the determination of the other point as to whether Ext. 1 was legally executed as mortgage bond or whether it is to be treated as a registered instrument. If it is a valid mortgage deed, then certainly the suit is within time. 9. On the question of legal execution of the document as a mortgage deed the Calcutta High Court in the case of Hare Krishna Panigrahi Vs. 1 was legally executed as mortgage bond or whether it is to be treated as a registered instrument. If it is a valid mortgage deed, then certainly the suit is within time. 9. On the question of legal execution of the document as a mortgage deed the Calcutta High Court in the case of Hare Krishna Panigrahi Vs. Jogneswar Panda and Others, cited above sent the case back to the trial Court with a direction that the learned Munsif should give the Plaintiff an opportunity of examining any of the attesting witnesses that are capable of being produced before the Court and that in case none of the attesting witnesses were produced or if the witness actually produced denied execution or failed to recollect the execution of the document as is contemplated in Section 71 of the Evidence Act, other evidence would be admissible and the case would be decided on such other evidence as the Plaintiff may choose to adduce. I think that on the facts and in the circumstances of the present case also, similar opportunity should be given to the Plaintiff and the matter should be sent back to the trial Court for retrial on further evidence if available on the question of attestation. I propose to follow the same course as B.K. Mukherjea, J. did in the Calcutta case cited above. I accordingly allow this appeal, set aside the decision of the lower appellate Court and remand the case to the trial Court and direct that the learned Munsif should give the Plaintiff an opportunity of examining any of the attesting witnesses who are capable of being produced before the Court. In case none of the attesting witnesses are produced of if the witness actually produced denies execution or fails to recollect the execution of the document, as is contemplated in Section 71 of the Evidence Act, other evidence would be admissible and the case would be decided on such other evidence which the Plaintiff may choose to adduce. Parties will bear their own costs up to this stage. Future costs do abide the result. Appeal allowed. Final Result : Allowed