Former testimony is admissible only when strict Section 33 conditions are met, including witness unavailability and prior cross-examination.

Former testimony from an earlier suit is admissible in later proceedings only on strict satisfaction of the statutory conditions under Section 33 of the Indian Evidence Act: the witness must be dead, unavailable, incapable of giving evidence, kept away by the adverse party, or cannot be produced without unreasonable delay or expense; the earlier and later proceedings must involve the same parties or their representatives, the issues must be substantially the same, and the adverse party must have had a right and opportunity to cross-examine. As the witness was alive and available for examination and cross-examination, those conditions were not met, and the objection to marking the deposition ought to have been upheld.

---

---

Issues: Whether the deposition of a witness recorded in an earlier suit could be marked as evidence in execution proceedings under Section 33 of the Indian Evidence Act.

Analysis: Section 33 permits use of evidence given in a previous judicial proceeding only when the witness is dead, cannot be found, is incapable of giving evidence, is kept out of the way by the adverse party, or cannot be produced without unreasonable delay or expense. Even then, the earlier and later proceedings must be between the same parties or their representatives in interest, the questions in issue must be substantially the same, and the adverse party must have had the right and opportunity to cross-examine the witness. The witness whose deposition was sought to be marked was alive and available for examination and cross-examination, and the necessary conditions for invoking the provision were not established.

Conclusion: The deposition was not admissible under Section 33, and the objection ought to have been upheld.

Ratio Decidendi: Former testimony from another proceeding is admissible only on strict satisfaction of the statutory conditions, including the unavailability of the witness and identity of parties and issues with prior opportunity of cross-examination.

---