IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION SECOND SECOND SECOND APPEAL NO. 356 OF 2008 APPEAL NO. 356 OF 2008 APPEAL NO. 356 OF 2008 Appasaheb Dnyanoba Yedake ..Appellants since deceased through (Orig.plaintiffs) Smt. Shakuntala Appasaheb Yedake & Ors. V/s. Dhondiram Krishna Yedake since deceased thorugh Smt.Laxmibai Dhondiram Yedake & Ors. ..Respondents (Orig.defendants) ....... Mr. Uday Warunjikar for the Appellants Mr. Satyajeet Ligade for Respondent Nos.1a, 1b and 2. ....... CORAM CORAM CORAM : SHRI K.K. TATED, J : SHRI K.K. TATED, J : SHRI K.K. TATED, J DATE DATE DATE : 12TH NOVEMBER, 2008 : 12TH NOVEMBER, 2008 : 12TH NOVEMBER, 2008 P.C.: 1. Heard finally at the stage of admission. 2. This appeal by the original plaintiff is directed against the Judgment and Decree passed by the Ad-hoc District Judge-I, Sangli on 4th September, 2007 in Regular Civil Appeal No.215 of 2002 dismissing the appeal arising from the Judgment and Decree passed by the Joint Civil Judge, Junior Division, Sangli in Regular Civil Suit No.924 of 2000 on 31st July, 2002 whereby the plaintiffs’ claim for the recovery of Rs.26,100/- from the defendants was dismissed. : 2 : 3. It is the case of Appellants that late Appasaheb Dnyanoba Edake filed Regular Civil Suit No.924 of 2000 against late Dhondiram Krishna Edake in the Court of Civil Judge, Junior Division, Sangli for recovery of Rs.26,100/- on the basis of promissory note dated 25th January, 1988 for Rs.15,000/-. Both the original plaintiffs and defendants died during the pendency of the suit and their legal heirs were brought on record. The legal heirs of the defendants opposed the claim on various grounds. The learned Civil Judge, Junior Division held that the promissory note was not adequately stamped, the execution of the promissory note and the acknowledgment dated 6th December, 1990 on the reverse of the promissory note were not proved to be in the hand writing of the late original defendant and that the claim was not with limitation and he dismissed the suit. The Appeal Court concurred with the findings of the Trial Court and dismissed the Appeal. 4. Feeling aggrieved, the plaintiffs (heirs of the late plaintiff Dhondiram Krishna Edake) preferred this Second Appeal. It is the case of the Appellant that in the month of January, 1988 original defendant Dhondiram approached the Appellant’s father Appasaheb and executed : 3 : promissory note of Rs.15,000/- towards hand loan. It is the case of the Appellants that the said promissory note is in the hand writing of Vasgadekar, bond writer but he is no more now. On behalf of the Appellants Prakash Edake the elder son of the original plaintiff entered into witness box and stated that when the promissory note Exh.20 executed by original defendant he was not present. Immediately thereafter, in his examination-in-chief, he again stated that he was present at the time of execution. These facts are not accepted by both the Courts on the ground that Appellants failed to prove that original defendant executed promissory note for the sum of Rs.15,000/-. On behalf of Respondent Pravin Dhondiram Edake at Exh.33 stated that his father died on 4th June, 1992 and he was residing with his daughter at Kupwad till death since 1989. He further stated that they published on 25-11-1983 public notice in news paper dainik "Lalkar", which is produced at Exh.25 stating that mental condition of their father was not sound and he was mentally affected person, therefore, no one should enter into any transaction with him. 5. On the basis of documents on record the Appellate Court held that :- : 4 : "11. Learned advocate for the defendants attracted my attention to the summons, served on Dhondiram and pointed out that the signature on the summons (Ex.6) and signature on Ex.20 are quite different. I have carefully compared the signature on Ex.20 and the signature on Ex.6; and I found that the signature on Ex.20 is not signed by a person who signed Ex.6." 6. The Appellate Court in respect of execution of promissory note being Exh.20 and about service of notice dated 25-1-1992, recorded findings as under:- "14. It is also to be noted that at the time of filing the suit, the office of the Court raised an objection that promissory note should have been on proper stamp; but it is seen that plaintiff has not complied the said office note. I have pointed out that the signatures on Ex.20 and the signature below acknowledgment dated 6-12-1990 are not tallied with the signature on the suit summons. The execution of promissory note is not proved and therefore, when the promissory note is not proved, plaintiffs are not entitled to recover the amount from the defendant. It is not denied by the plaintiff that Dhondiram Edke was residing at Kupwad, therefore, the notice issued on the address of village Karnal through advocate, cannot be accepted as a proper service, when the postal envelope received back under the endorsement: "The address has not accepted the register"." 7. The learned counsel for the parties heard. The questions of facts have been concluded by the concurrent finding of the two Courts. There is no substantial question of law to be decided in the Second Appeal. : 5 : Hence, there is no merit in the Appeal and the Appeal deserves to be dismissed. Both the Courts below on examining the issues raised by the respective parties recorded concurrent findings that neither the promissory note Exh.20 was proved to have been executed by the original defendant nor the notice issued by the original plaintiff was proved to have been served on the original defendant. The view taken by the Courts below, cannot be held to be erroneous necessiating interference at the hands of this Court while exercising the powers under Section 100 of the Code of Civil Procedure and, therefore, the challenge to the concurrent findings of the Courts below is devoid on substance. Now, it is well settled that as per provisions of Section 100 of Code of Civil Procedure, if no substantial question of law is involved in the Appeal, there is no scope for entertaining the Second Appeal. Similar view has been taken by the Apex Court in M/s. K.C. Methew and Sons M/s. K.C. Methew and Sons M/s. K.C. Methew and Sons and and and Anr. V/s. Sulaikha Beevi & Ors.AIR 2000 SC 3409. Anr. V/s. Sulaikha Beevi & Ors.AIR 2000 SC 3409. Anr. V/s. Sulaikha Beevi & Ors.AIR 2000 SC 3409. In the case in hand, it is not shown by the learned Counsel for the Appellants that the aforesaid concurrent findings of the Courts below are either perverse or based on no evidence and as such in my opinion, no substantial question of law is involved in this Appeal and, therefore, the present Second Appeal is not : 6 : sustainable in law. It is accordingly dismissed. No order as to costs. (K.K. (K.K. (K.K. Tated, J) Tated, J) Tated, J)