U.N. Sinha, J.

(1) This appeal has been filed by the defendants. It arises out of a suit instituted by the original plaintiff, named Sadho Mandal, for realisation of Rs. 2343-12-0 as principal plus Rs. 140 as interest, on the basis that the defendants had purchased 75 maunds of rice on the 15th April 1961. Sadho Mandal died during the pendency of the original suit and the present respondents were substituted in his place. The trial court decreed the suit for the principal amount of Rs. 2343-12-0 and rejected the claim for the consolidated Interest charged. Future interest was granted. On appeal the trial court decree has been affirmed.

(2) The relevant facts are as follows: The original plaintiff had alleged that the defendants were members of a joint Hindu family governed by the Mitakshara School of Hindu law and they had a joint family business dealing in grains. They had purchased 75 maunds of rice on credit on the 15th April, 1961, promising to pay the price within a month after selling it. It was alleged that the defendants had sold the rice, but they had not paid the price thereof. The suit was contested by the defendants and in substance, their case was that they did not have any business of dealing in grains and they had never purchased grain on credit. The alleged purchase was denied and reasons were advanced for instituting this suit falsely. All the facts have been found against the defendants by both the courts below.

(3) Learned counsel for the appellants has submitted, that before entering into the evidence led by the plaintiffs regarding the disputed transactions, the court of appeal below had really come to a finding of fact that the plaintiff's case was correct, in paragraph 8 of its judgment and therefore the judgment of the court of appeal below is not in accordance with law. The following sentence in the judgment has been relied upon for his contention:

"Therefore, the moment the defendant failed to prove that the present suit was instituted as a result of grudge and enmity on account of land dispute, the case of the plaintiffs regarding sale of rice to the defendants as alleged must be believed."

That is to say, according to the learned counsel the court of appeal below prejudged the respective cases of the parties before considering the evidence on the record. But, having considered the whole of the judgment of the court of appeal below, I do not think that the learned Judge has proceeded for his conclusions, on anything except the materials on the record. As the question of grudge and enmity had been raised by the parties, that had to be gone into. But the actual case of advance of grains has been dealt with on the evidence adduced by the parties and the evidence of the plaintiff's witnesses has been believed. The learned counsel for the appellant has urged that the question of benefit to all the defendants has not been considered properly. But this question has also been dealt with by both the courts below. As a matter of fact the trial court has stated in paragraph 19 of its judgment that the defendants were joint and there was no denial that the other defendants were not in any way benefited by the purchase from the deceased plaintiff. The matter has been referred to by the court of appeal below in paragraph 11 of its judgment. There-lore, there is no validity in the contention that the judgment has been vitiated for non-consideration of this aspect of the matter.

(4) Lastly learned counsel for the appellants has made an argument based on a fresh ground filed today, although the hearing of the case commenced on the 21st July, 1967. For the first time it is urged today that in view of Section 214 of the Indian Succession Act, no decree could have been passed in favour of the respondents, who claimed to be the heirs of Sadho Mandal, for want of succession certificate, I do not think that at this stage this ground should be allowed to be urged. This ground was not taken in the trial court, where the suit was decreed. This ground was not taken in the court below and the appeal failed there. This ground was, not taken in the memorandum of appeal presented in this court on the 20th July, 1965. It is clear that investigation of facts is necessary on the point whether this case was of succession of survivorship, of at least the sons. In any case, the decree cannot be set aside for want of succession certificate, if Section 214 of the Indian Succession Act applies, as further opportunity must be given to the plaintiffs to obtain succession certificate before the appeal can be disposed of. This appeal has been pending for two years and no attempt has been made during this time to raise this ground. Learned counsel has relied upon the case of Zabur Mian v. Puran Singh, reported in 5 Pat LT 504 = (AIR 1924 Pat 525). This decision is quite distinguishable as in that case after the trial court had decreed the suit, this ground was agitated in the first court of appeal, as a result of which the suit was dismissed. The plaintiffs had come here on appeal and before this court they produced a succession certificate, as a result of which the trial court's decree was restored. In the instant case, if the appellants had taken up this point ia 1965, either the respondent might have produced a succession certificate, if they had already taken one, or they may have had time to obtain one. If the point urged at this stage is allowed to be urged successfully, it would only mean postponement of the appeal for years. Therefore, I do not think that this question should be allowed to be agitated at this stage. Learned counsel for the appellants has also relied upon the case of Girijanath Roy v. Kanai Lal Mitra reported in AIR 1918 Cal 336. That was also a case where an objection to the invalidity of an award was taken in a first appeal. It was held, there, that an objection to the validity of a reference as well as to the award on the ground that all the parties concerned did not join in the reference related to the jurisdiction of the court to make a reference. That decision is also clearly distinguishable. If all the parties concerned did not join in the reference, then no reference could have been made

as against those who did not join. But, in a case of the nature under consideration there is no defect in the suit itself, as was pointed out by this Court in 5 Pat LT 504 = (AIR 1924 Pat 525) and a succession certificate could be produced at any stage before the litigation came to an end. Therefore, the decision of the Calcutta High Court is not pari materia. As I have already indicated above, the consideration of the present question will require consideration of the facts as to what was the actual case led by the parties in court. Therefore, I do not think that this ground should be permitted to be urged now. (5) In the result, the appeal fails and it is dismissed with costs.