1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL NO.1262 OF 2004 WITH CIVIL APPLICATION NO.9760 OF 2004. Madhukar Sadashivrao Pawar ... Appellant. Versus Dinkar Ganpatrao Shahane ... Respondent. ... Mr.P.B.Shirsath, advocate for the appellant. Mrs.C.S.Deshmukh, advocate for the Respondent. ... CORAM : S.V.GANGAPURWALA,J. Date : 06.09.2010. PER COURT 1. The appellant is the original defendant. The present Respondent has filed present suit for recovery of an amount of Rs. 32,251/- (Rupees thirty two thousand two hundred fifty one) as against the present defendant. The 2 said suit came to be decreed. The defendant preferred an appeal. The appellate Court also dismissed the appeal and confirmed the judgment and decree of the trial Court. 2. Mr.Shirsath, learned counsel for the appellant submitted that : (i) The suit is barred by limitation. (ii) The document is not registered nor is on sufficient stamp, as such was not admissible in evidence. (iii) No attesting witness has been examined on the document Exh.63 and as such the same can not be read in view of Section 68 of the Indian Evidence Act. (iv) The amount was deposited in the joint account and the other two account holders are not made parties and as such the suit is bad for non- joinder of necessary parties. (v) The amount was deposited in the joint account of three persons and if the liability 3 arises, it would be joint and several liability and as such unless other two persons are added as parties, the said liability can not be fixed on the defendants alone. (vi) The objection that the said document can not be read in view of the fact that the attesting witness was not examined would not be relevant for the reason that Section 68 mandates examination of an attesting witness only if the said document is a document which requires compulsory attestation i.e. if by law it is required to be attested then only the said document can not be admitted in evidence unless attesting witness is examined. The document in question is merely an agreement between the parties and is not a document which by law is required to be attested. In view of the same, Section 68 of Indian Evidence Act would not apply. (vii) The next contention of Mr.Shirsath, that the suit is bad on account of non-joinder of necessary parties would not be 4 sustainable for the reason that the privity of contract was between the plaintiff and the defendant. When the other two persons are not privy to the contract then in such circumstances the person who is not a privy to the contract can not be made liable. (viii) The next contention of Mr.Shirsath, that the document was executed on 21.5.1988 and the amount was deposited by the plaintiff in the joint account on 24.5.1988 shows that the said document was without consideration. (ix) It is not disputed and it has also been proved as per the discussion of both the Courts that the said amount was deposited in the account of the defendant and the other two persons. As such the consideration that was mentioned in the agreement Exh.63 was paid. As per Section 2(d) of the Contract Act, consideration can be past, present or future. The next contention of Mr.Shirsath, that the suit was barred by limitation as the agreement dated is 21.5.1988 and the suit was filed on 10.6.1991, the Courts below have considered this aspect and 5 it has been held that the three years expired during the summer vacation and the suit was filed on the opening day. As such the same is within limitation. Mr.Shirsath, also contended that the said document is not on a stamp paper, as such is inadmissible in evidence. The agreement requires to be on stamp paper of Rs.10/- but Mr.Shirsath, fairly conceded that objection regarding insufficiency of stamp was not taken before the Court below. 3. In view of the judgment of the Apex Court in a case of "Javer Chand and others Vs. Pukhraj Surana" AIR 1961 Supreme Court 1655, once a document is marked as exhibit and has been used by parties in examination and cross-examination of witnesses then it is not open for the Court to go behind the order in appeal or revision. The said agreement is also not required to be registered within the meaning of Section 17 of the Registration Act. In light of the above, no substantial question of law is involved. The Second Appeal is dismissed with no order as to costs. 6 4. In view of dismissal of Appeal, the Civil Application does not survive and it is accordingly disposed of. (S.V.GANGAPURWALA,J.) asp/office/sa1283.04