Due attestation and foreclosure on conditional sale mortgages: specific denial and proper proof upheld, sale substitution rejected.

Specific denial of attestation was required, and where the written statement challenged only execution and consideration, one attesting witness's testimony that the deed was attested in the mortgagor's presence was sufficient to prove due attestation, especially when that mode of attestation was not challenged in cross-examination. A mortgage by conditional sale carried foreclosure as the proper remedy, and the court had no discretion to substitute sale unless the case was one of anomalous mortgage. On these principles, the foreclosure decree was affirmed and the challenge failed.

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Issues: (i) Whether due attestation of the mortgage deed was proved in view of the pleadings and evidence. (ii) Whether the Court had discretion to direct sale instead of foreclosure on a mortgage by conditional sale.

Issue (i): Whether due attestation of the mortgage deed was proved in view of the pleadings and evidence.

Analysis: The challenge to attestation was not specifically taken in the written statement, which only denied execution and consideration. Under the rule requiring specific denial, and in the light of the proviso to the evidence rule governing proof of attested documents, one attesting witness was called and stated that the deed was attested by himself and the other witness in the mortgagor's presence. As attestation was not specifically challenged in cross-examination, that evidence was sufficient to prove due attestation.

Conclusion: Due attestation was proved, and this contention failed against the appellant.

Issue (ii): Whether the Court had discretion to direct sale instead of foreclosure on a mortgage by conditional sale.

Analysis: Relief by sale is not available where the mortgage is by conditional sale, because the remedy in such a case is foreclosure. The power to substitute sale for foreclosure exists only in the case of an anomalous mortgage. Since the mortgage in question was held to be a mortgage by conditional sale and not an anomalous mortgage, no discretion could be exercised to order sale.

Conclusion: The decree for foreclosure was rightly passed, and the request to substitute sale was rejected.

Final Conclusion: The appellant failed on all substantive grounds, and the foreclosure decree was affirmed.

Ratio Decidendi: Where execution of an attested document is specifically denied, proof by one attesting witness that the deed was attested in the executant's presence is sufficient if the mode of attestation is not specifically challenged; and a court has no discretion to order sale in place of foreclosure on a mortgage by conditional sale.

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