Decided on March 31,1997

DHANI RAM Appellant


ARUN KUMAR GOEL, J. - (1.)This is plaintiffs appeal against the judgment and decree dared 14 -1 -1991 passed by Shri Surjit Singh, District Judge. Mandi, Kullu and Lahaul and Spiti Districts in Civil Appeal No 25 of 1987 and No. 268 of 1988 Defendants had filed the appeal before the lower appellate Court against the judgment and decree passed by the trial Court on 27 -12 -1986, whereby the suit of the plaintiff had been decreed in the sum of Rs. 18,000 with costs and future interest at the rate of 6% p.a. and by allowing the appeal of the defendants the judgment and decree in favour of the plaintiff and against the defendants has been set aside, consequently the suit of the plaintiff has been dismissed.
(2.)Brief facts which are not in dispute are that Amar Chand Sharma was the proprietor of M/s. Minerva Studio, Akhara Bazar, Kullu. Said Amar Chand Sharma had approached the State Bank of Kullu for providing some financial assistance which in fact had been provided by the said Bank to the deceased for carrying out his business of photography and for this purpose cash credit facility in the sum of Rs 25,000 was allowed. Since the deceased failed to repay the financial assistance availed of by him from the State Bank of India, Kullu, the Bank filed a -suit for recovery in this Court, which was registered as Civil Suit No. 9 of 1977, titled as State Bank of India v. M/g. Minerva Studio, Akhara Bazar, Kullu and others. Initially when the suit was filed M/s, Minerva Studio was defendant No. 1, Amar Chand Sharma was arrayed as defendant No. 2 and the plaintiff was arrayed as defendant No. 3 in this suit During the pendency of the suit Amar Chand Sharma died and presents defendants No. 2 to 6 were added as legal representatives of the deceased.
(3.)This suit was being contested and resisted by all the defendants including the present plaintiff in the High Court. Issues had been framed in Civil Suit No. 9/77 in this Court and after the evidence of the plaintiff bad been concluded in the affirmative on 21 -3 -1981, the claim of the plain tiff -bank was conceded by Counsel for defendant No.1 and legal representatives of defendant No 2 (present defendants No. 2 to 6) and decree was passed. Learned Judge before whom the matter came up passed a decree pf .Rs. 56,887 72 with costs in favour of the plaintiff and against the defendants It was further ordered that the principal amount of Rs. 20.000 shall carry future interest at the rate of 12% per annum from the date of suit till payment. Liability of present defendants No. 2 to 6 for the payment of decretal amount was limited to the extent of the property of Amar Chand Sharma deceased falling in the hands of other defendants. Whereas defendant No. 3 in civil suit No 9/77 (present plaintiff) was held liable to repay the decretal amount in the monthly Instalments of Rs. 1,500 by 10th of each English calendar month commencing from June, 1981. In the decree it was also mentioned that in case if part payment out of the decretal amount is realised out of the estate of Amar Chand Sharing the same shall be adjusted towards the decretal amount and in case of default of payment of any instalment defendant Dhani Ram Thakur was made liable to pay the balance decretal amount forthwith. Since the amount was not paid in terms of the judgment and decree, Ext. P -1 and Ext P -2 respectively in the aforementioned suit, the Bank sued out Execution Petition No 2 to 81 by means of Execution petition (Ex. P -3) wherein attachment was sought by the decree holder Bank vide warrant of attachment Ex P -5 issued by this Court The property was duly attached as ordered by this Court on 23 -6 -1981 vide Ex. P -6,

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