1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3475 OF 2010 Sushila Vithaba Bhosale .. Petitioner versus Yashwant Bajirao Sawant .. Respondent Mr.R.V.Bansode for the petitioner. CORAM : A.S.OKA, J. DATE : 30th April 2010. P.C.: . Heard learned counsel appearing for the petitioner. The petitioner is one of the judgment debtors. The decree holder made an application for leading secondary evidence of the alleged Will dated 16th April 1984. A certified copy of the Will issued by the office of the Sub-registrar is on record. An application was made by the decree holder for grant of permission for leading secondary evidence of the said Will on the ground that the original Will has been misplaced and the same could not be traced out notwithstanding diligent efforts. On the said application, the learned executing Court passed an order directing decree holder to file an affidavit. Accordingly, constituted attorney of the decree holder filed affidavit and the said application has been allowed by the impugned order. The first submission of the learned counsel appearing for the petitioner is that the order of the Court directs the decree holder to file an affidavit in support of the application but instead of decree holder, her constituted attorney has filed affidavit. The second submission is that the effect of the impugned order will be that the certified copy of the Will will be straightaway read in evidence without the document being proved. 2 2. I have considered the submissions. Admittedly, the certified copy of the alleged Will is on record. The certified copy has been issued by the Sub-registrar. In support of the contention that the original Will was not traceable, the decree holder was called upon to file an affidavit. The affidavit has been filed by the constituted attorney of the decree holder. He has stated that repeated efforts were made to trace out the Will but the efforts could not succeed. By filing affidavit of her constituted attorney, the decree holder made substantial compliance and therefore no fault can be found with the impugned order by which secondary evidence of the Will was permitted to be adduced in the form of certified copy. 3. The prayer in the application at Exhibit 49 on which the impugned order has been passed clearly shows that what was prayed for was for grant of permission to lead secondary evidence and to prove the execution of the Will. The effect of the order is that only secondary evidence of the Will has been permitted to be adduced. However, the document will have to be proved in accordance with the provisions of the Indian Evidence Act, 1872. Merely because a permission is granted to lead secondary evidence, the certified copy of the Will cannot be admitted in evidence unless the same has been duly proved. 4. Subject to what is observed above, no case for interference is made out. Writ petition is rejected. (A.S.OKA,J)