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IN THE HIGH COURT OF ORISSA AT CUTTACK S.A. No.399 of 2000 (In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908) M/s. Fertiliser Supply Center, Berhampur, Ganjam …. Appellant -versus- State Bank of India, Berhampur, Ganjam and another …. Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Mr. N. C. Panigrahi, Advocate. For Respondents - Mr. Shakti Prasad Dash, Advocate. appearing on behalf of Mr. P. K. Singh, Advocate. CORAM: HON’BLE MR. JUSTICE A.C.BEHERA Date of Hearing :12.07.2024 :: Date of Judgment :07.08.2024 A.C. Behera, J. This second appeal has been preferred against the confirming judgment. 2. The appellant of this second appeal was the defendant No.1 before the Trial Court in the suit vide M.S. No.61 of 1982 and appellant before the First Appellate Court in the First Appeal vide M.A. No.4 of 1999. The respondent No.1-Bank of this second appeal was the sole plaintiff before the Trial Court in the suit vide M.S. No.61 of 1982 and respondent No.1 before the First Appellate Court in the First Appeal vide M.A. No.4 of 1999. S.A. No.399 of 2000 Page 1 of 18 The respondent No.2 of this Second Appeal was the defendant No.2 before the Trial Court in the suit vide M.S. No.61 of 1982 and
Legal Reasoning
respondent No.2 before the First Appellate Court in the First Appeal vide M.A. No.4 of 1999. 3. The suit of the plaintiff-Bank (respondent No.1 in this second appeal) before the Trial Court in M.S. No.61 of 1982 against the defendants (sole appellant and respondent No.2 in this second appeal) was a suit for realisation of money. 4. As per the case of the plaintiff-Bank, the defendant No.1 being a loanee under the plaintiff-Bank availed cash credit loan to the limit of Rs.15,000/- from the plaintiff-Bank for his business purpose through hypothecation of stocks. In the said cash credit loan of the defendant No.1 before the plaintiff-Bank, the defendant No.2 stood as a guarantor. After availing such cash credit loan to the limit of Rs.15,000/-, again on dated 20.04.1978, the defendant No.1 approached the plaintiff-Bank for enhancement of his such cash credit loan limit from Rs.15,000/- to Rs.25,000/- for smooth functioning of his business. As per such request of the defendant No.1, the plaintiff-Bank enhanced the cash credit loan limit of the defendant No.1 from Rs.15,000/- to Rs.25,000/-, in which, the defendant No.2 also stood as a guarantor. The defendant No.1 availed the aforesaid cash credit loans from the plaintiff-Bank in both the occasions being agreed with all the terms and conditions relating to rate of interest Page 2 of 18 S.A. No.399 of 2000 and mode of payment by executing necessary documents including Demand Promissory Note before the plaintiff-Bank. When the defendant No.1 defaulted in repayment of the loan dues of the plaintiff-Bank and did not submit the stock statements of the fertilizers and pesticides to the plaintiff-Bank, then on dated 15.09.1982, the plaintiff-Bank issued lawyer’s notices to the defendants requesting them (defendants) for repayment of the outstanding loan dues. Though the defendants received the said lawyer’s notices of the plaintiff-Bank, they (defendants) did not pay any heed to the same. For which, without getting any way, the plaintiff-Bank approached the Civil Court by filing the suit vide M.S. No.61 of 1982 against the defendants praying for passing a money decree against them (defendants) for realization of the outstanding loan dues i.e. Rs.44,138/- from the defendants making them (defendants) jointly or severally liable for the same with contractual interest thereon @14.5% per annum since the date of filing of the suit till the passing of decree along with future interest thereon till its full and final realisation of the same along with other reliefs, to which, the plaintiff-Bank is entitled for. 5. Having been noticed from the Trial Court in the suit vide M.S. No.61 of 1982 filed by the plaintiff-Bank, only defendant No.1 contested the suit of the plaintiff-Bank, but defendant No.2 was set ex parte. The defendant No.1 contested the suit of the plaintiff-Bank by filing written statement denying the averments made by the plaintiff- Page 3 of 18 S.A. No.399 of 2000 Bank in its plaint taking specific stands therein that, the defendant No.1 was a dealer of fertilizers and pesticides on behalf of the plaintiff-Bank in order to supply the fertilizers and pesticides to the loanee farmers of the plaintiff-Bank. For which, the defendant No.1 was keeping the stocks of the fertilizers and pesticides and was selling the same to the loanee farmers of the plaintiff-Bank as per the advices of the plaintiff-Bank and was crediting the sale proceeds thereof to his account in the plaintiff- Bank. Initially, he (defendant No.1) was a loanee of cash credit facility to the limit of Rs.12,000/-, which was enhanced later-on from Rs.12,000/- to Rs.15,000/-. On the basis of such enhancement of his cash credit loan amount, he (defendant No.1) was keeping the stocks of the fertilizers and pesticides. But, abruptly, the plaintiff-Bank stopped in sending the advices of the loanee farmers of plaintiff-Bank, for which, the stock of the fertilizers and pesticides with defendant No.1 became useless without being utilized. So, the defendant No.1 suffered a loss to the tune of Rs.21,177.90 paise. He (defendant No.1) has not executed any revival letter before the plaintiff-Bank acknowledging any loan outstanding due against him (defendant No.1). As, he (defendant No.1) has suffered losses to the tune of Rs.21,177.90paisa for the above negligent acts of the plaintiff-Bank, for which, he (defendant No.1) submitted a counter claim along with his written statement against the plaintiff-Bank praying for passing of a Page 4 of 18 S.A. No.399 of 2000 decree for Rs.21,177.90paisa in favour of the defendant No.1 and against the plaintiff-Bank and prayed for dismissal of the suit of the plaintiff- Bank. 6. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether 7 (seven) numbers of issues were framed by the Trial Court in the suit vide M.S. No.61 of 1982 and the said issues are:- ISSUES (i) (ii) (iii) (iv) (v) (vi) (vii) Whether the suit is maintainable? Whether there is cause of action for the suit? Whether the suit claim is correct? Whether the defendants are jointly and severally liable to pay the suit claim? To what relief? Is the defendant No.1 entitled to the counter claim/set up? Is the counter claim barred by limitation? 7. In order to substantiate the aforesaid relief sought for by the plaintiff-Bank against the defendants in the suit vide M.S. No.61 of 1982, the plaintiff-Bank examined one witness i.e. Administrative Officer of the Bank as P.W.1 from its side and relied upon the documents vide Exts.1 to 21. On the contrary, in order to nullify/defeat the suit of the plaintiff- Bank, the contested defendant No.1 examined one witness on his behalf as D.W.1 and relied upon series of documents from his side vide Exts.A to J. 8. After conclusion of hearing and on perusal of the materials, documents and evidence available in the record, the Trial Court answered S.A. No.399 of 2000 Page 5 of 18 all the issues in favour of the plaintiff-Bank and against the defendants and basing upon the findings and observations made by the Trial Court in the issues in favour of the plaintiff-Bank and against the defendants, the Trial Court decreed the suit of the plaintiff-Bank on contest against the defendant No.1 and ex parte against the defendant No.2 and passed a money decree in favour of the plaintiff-Bank for realisation of Rs.44,138/- with pendentielite and future interest thereon at the contractual rate from the defendants since the date of filing of the suit till its full and final realizations making them (defendants) jointly or severally liable for the same with a direction to make the payments of the same within three months and dismissed the counter claim of the defendant as per its judgment and decree dated 08.04.1994 and 22.04.1994 respectively. 9. On being dissatisfied with the aforesaid judgment and decree dated 08.04.1994 and 22.04.1994 respectively passed by the Trial Court in the suit vide M.S. No.61 of 1982 in favour of the plaintiff-Bank and against the defendants, the defendant No.1 challenged the same by preferring the First Appeal vide M.A. No.4 of 1999 being the appellant against the plaintiff-Bank arraying the plaintiff-Bank as respondent No.1 and also arraying defendant No.2 as respondent No.2. 10. After hearing from defendant No.1 (appellant) and the respondent No.1 (plaintiff), the First Appellate Court dismissed that First Appeal Page 6 of 18 S.A. No.399 of 2000 vide M.A. No.4 of 1999 of the defendant No.1 as per its judgment and decree dated 18.08.2000 and 29.08.2000 respectively accepting/concurring the findings and observations made by the Trial Court against the defendants and in favour of the plaintiff-Bank. 11. On being aggrieved with the aforesaid judgment and decree of the dismissal of the First Appeal vide M.A. No.4 of 1999 of the defendant No.1, he (defendant No.1) challenged the same by preferring this Second Appeal being the appellant against the plaintiff-Bank arraying the plaintiff-Bank as respondent No.1 and also arraying defendant No.2 as respondent No.2. 12. This Second Appeal was admitted on formulation of the following substantial questions of law i.e.:- (i) Whether the suit of the plaintiff-Bank vide M.S. No.16 of 1982 was abated in toto due to non-substitution of the legal heirs of defendant No.2 by the plaintiff-Bank, as the defendant No.2 expired in October, 1990 during the pendency of the suit leaving behind his wife, son and two daughters as his legal heirs and whether on that ground the judgments and decrees passed by the Trial Court and First Appellate Court are non-est in the eye of law as the defendant No.1 was a joint tort feasor and for non- substitution of legal heirs of the defendant No.2 by the plaintiff- Bank, the plaintiff-Bank was not entitled for any relief? (ii) Whether in view of the specific denial of the defendants that Exts.4 & 6 were not executed by the defendants and when they did not admit the correctness of the accounts maintained by the plaintiff Bank, then it was the duty of the plaintiff to prove the correctness of entries in Ext.6? 13. I have already heard from the learned counsel for the appellant (defendant No.1) and the learned counsel for the respondent No.1 (plaintiff-Bank). S.A. No.399 of 2000 Page 7 of 18 14. In order to assail the judgment and decree passed by the Trial Court and First Appellate Court, the learned counsel for the appellant relied upon the ratio of the following decisions of the Apex Court and Hon’ble Courts:- (i) AIR 1962 (SC) 89—State of Punjab Vrs. Nathu Ram— (Paras 8, 9 & 10)—CPC, 1908—Order 22 Rule 4 & 11 and Order 1 Rule 9—Abatement of appeal as against one respondent—Effect—Acquisition of land jointly owned by two brothers—Award of compensation jointly in favour of both— Appeal by State—Abatement against one respondent—Appeal held could not proceed against other. (ii) AIR 1973 (SC) 204—Babu Sukhram Singh Vrs. Ram Dular Singh and others—(Para 3)—CPC, 1908—Order 22 Rule 4—Joint claim against defendants—Failure to implead legal representatives of deceased defendant in appeal—Appeal abates against all, as a whole. (iii) AIR 1978 (Orissa) 91—Suna Majhi Vrs. Bhairab Prasad Behera—(Paras 4 & 6)—CPC, 1908—Order 22 Rules 3 & 11— Scope—Joint decree in favour of plaintiffs—Pending appeal filed by the defendant—One of the plaintiffs (respondent) dying—Legal representatives no impleaded though information given by surviving plaintiff (respondent)—Appeal allowed— Held, the appeal could not have proceeded for determination and abated in its entirety. CPC, 1908—Section 100—Second Appeal—Question of abatement of appeal can be taken up for the first time in Second Appeal. (iv) AIR 1972 (Orissa) 161—Kanungo Khagendranath Das Mohapatra and others Vrs. Jadabendra Narayan Patnaik— (Paras 8 & 8A)—CPC, 1908—Order 22 Rule 4 read with Rule 11—Suit for damages for joint trespass by defendants on plaintiff’s land—Suit dismissed with costs against all—Appeal by plaintiff—Abated against one defendant (respondent) for non-substitution of his LRs. The effect of abatement of appeal of the plaintiff as against one of the defendants (respondents) for non-substitution of his LRs—The whole appeal abates. (v) 61 (1986) C.L.T.—453—Sukadev Prusty and others Vrs. Gokhei Prusty and others (DB)—(Para 8)—CPC, 1908—Order 22, Rule 4—Abatement of appeal against one of the many defendants. The effect of partial abatement as against the S.A. No.399 of 2000 Page 8 of 18 deceased defendant on the whole suit depends upon the nature of the suit. (i) If, on account of partial abatement as against the deceased defendant, it becomes impossible to proceed with the suit against rest defendants, in that situation, the suit must fail as a whole, then, the entire suit shall abate. (ii) If for non- substitution of LRs of one deceased defendant, it will bring its consequence of having two inconsistent or contradictory decrees in the same suit, then in that situation, the suit shall abate as a whole. (iii) if a decree is passed in the absence of the LRs of the deceased defendant, the said decree cannot be effectually executed by reason of the possibility of the rights of the LRs of the deceased defendant being affected, in that situation also, the suit shall abate as a whole. 15. On the contrary, in support of the judgment and decree passed by the Trial Court and First Appellate Court, the learned counsel for the plaintiff-Bank (respondent No.1 in this second appeal) relied upon ratio of two decisions reported in Jayanta Kumar Das Vrs. United Bank of India and others reported in 1995 (II) OLR 352 and State Bank of India Vrs. Sk. Samtulla reported in 1985 (II) OLR 292. 16. So far as the first substantial question of law i.e. whether the suit of the plaintiff-Bank vide M.S. No.16 of 1982 was abated in toto due to non- substitution of the legal heirs of defendant No.2 by the plaintiff-Bank, as the defendant No.2 expired in October, 1990 during the pendency of the suit leaving behind his wife, son and two daughters as his legal heirs and whether on that ground the judgments and decrees passed by the Trial Court and First Appellate Court are non-est in the eye of law as the defendant No.1 was a joint tort feasor and for non-substitution of legal heirs of the defendant No.2 by the plaintiff-Bank, the plaintiff-Bank was not entitled for any relief is concerned; S.A. No.399 of 2000 Page 9 of 18 It is the settled propositions of law that, the bank is a trustee of public fund. It cannot compromise the public interest for benefiting private individuals. Those, who takes loan and avail financial facilities from the Bank, they are duty bound to repay the said amounts strictly in accordance with the terms of the contract. Any lapse in such matters has to be viewed seriously and the Bank is not only entitled, but duty bound to recover the said unpaid amounts by adopting all legally permissible methods. Because, loans are disbursed by the Bank from public funds of tax payers’ money and loanee is a trustee for the loan amount. It could not become a windfall for him. Loanee has a pious duty to abide his promise for repayment. Timely repayment of loan ensures facilitation of loan to others, who will be in need. Public policy cannot be involved effectively to prevent a loanee from repayment. So, it would be contrary to public policy to prevent appellant-Bank from recovering the loan. As per law, guarantor’s liability is co-extensive with that of the principal debtor and not in alternative. It is the lender’s discretion to proceed against whom. Therefore, the decree holder-Bank can execute the decree against the principal borrower without proceeding against the guarantor. On this aspect the propositions of law has already been clarified in the ratio of the following decisions:- S.A. No.399 of 2000 Page 10 of 18 (i) 2010 (8) SCC 129—Indian Bank Vrs. Blue Jaggers Estates Limited and others—(Para 25)—Debt, Financial and Monetary Laws—Banks—Public Sector Banks—Status of, and their duty— Held, such a bank is trustee of public funds—It cannot compromise public interest for benefiting private individuals—It is duty-bound to recover the amount due from borrowers by adopting all legally permissible methods. (ii) 2009 (3) CCC 438 (SC)—Industrial Investment Bank of India Ltd. Vrs. Biswanath Jhunjhunwala—(Para 14)—Section 19— Guarantor’s liability is co-extensive with that of the principal debtor—Decree holder bank can execute the decree against the guarantor without proceeding against the principal borrower. 17. When, as per law, liberty has been given to the creditor-Bank for exercising its discretion either to proceed against the principal borrower or to proceed against the guarantor and when it is the pious duty of the principal borrower to repay the outstanding loan dues timely as per the terms of the agreement with the plaintiff-Bank, then at this juncture, the abatement of the suit against the guarantor (defendant No.2) for non- substitution of his LRs by the plaintiff-Bank during the pendency of the suit and passing of the decree by the Trial Court making the principal borrower (defendant No.1) and guarantor (deceased defendant No.2) liable jointly or severally for payment of the same can never be a ground for exoneration of the defendant No.1 (principal borrower) from its liability to repay the outstanding loan dues against him. Because, as per law, although the money suit vide M.S. No.61 of 1982 filed by the plaintiff-Bank against the principal borrower (defendant No.1) and guarantor (defendant No.2) for realization of outstanding loan S.A. No.399 of 2000 Page 11 of 18 dues was abated against the defendant No.2 (guarantor) for non- substitution of his LRs, still then, the cause of action for the plaintiff- Bank for realisation of the outstanding loan dues had survived against the principal debtor/borrower i.e. against defendant No.1. For which, according to the nature of the suit, as per law, the suit of the plaintiff- Bank vide M.S. No.61 of 1982 was not abated as a whole i.e. against both the defendants including against the defendant No.1 (principal borrower) for non-substitution of the legal heirs of defendant No.2 (guarantor). So, the suit of the plaintiff-Bank vide M.S. No.61 of 1982 was not at all abated against the defendant No.1 (principal borrower). On this aspect, the propositions of law has already been clarified by the Hon’ble Courts in the ratio of the following decisions:- (i) 2023 (4) Civil Court Cases 309 (J&K&L)—Mohammad Rafiq Khan & Ors. Vrs. Punjab National Bank & Ors.—(Paras 13 & 14)—CPC, 1908—O.22 R.4—Recovery suit against principal debtors and guarantors—Liabilities sought to be enforced joint and several—Death of guarantors—Even if suit stands abated against guarantors still then plaintiff’s cause of action as against principal debtors survives—Suit does not abated. (ii) 1995 (II) OLR 352—Jayanta Kumar Das Vrs. United Bank of India and others—(Paras 4 & 5)—CPC, 1908—Order 27 Rule 4—Purpose is to avoid delay—No necessity of substitution the legal representatives of the defendant who has failed to file written statement or having filed, has failed to appear and contest—Judgment may be pronounced against said defendant notwithstanding death of such defendant and it shall have the same force and effect as if it has been pronounced before his death. (iii) 1985 (II) OLR 292—State Bank of India Vrs. Sk. Samtualla—(Para 2)—CPC, 1908—Abatement of suit—Two persons jointly and severally liable for the loan—One person dies S.A. No.399 of 2000 Page 12 of 18 during the pendency of the suit—Substitution not made in his place—Suit abates against that defendant. 18. When, the decree was passed by the Trial Court in the suit vide M.S. No.61 of 1982 in favour of the plaintiff-Bank for realisation of the outstanding loan dues with interest thereon making the defendant No.1 (principal borrower) and the deceased guarantor (defendant No.2) liable jointly or severally, then in view of the principles of law enunciated in the ratio of the aforesaid decisions indicated in paragraph No.17, the decree for realisation of the outstanding loan dues from the principal borrower (defendant No.1) cannot be extinguished as per law.
Legal Reasoning
Therefore, the decisions relied upon by the learned counsel for the appellant (defendant No.1-principal borrower) indicated in paragraph No.14 for making the decree passed by the Trial Court nullity against the principal borrower (defendant No.1) on the ground of non-substitution of the LRs of the guarantor (deceased defendant No.2) are not applicable to this suit/appeal at hand on facts according to the nature of the suit as discussed above. Because, the nature and character of the cases in the said decisions relied by the learned counsel for the appellant (defendant No.1- principal borrower) are quite distinguishable from the nature and character of the present suit at hand. 19. So far as the 2nd substantial question of law i.e. whether in view of the specific denial of the defendants that Exts.4 & 6 were not executed by S.A. No.399 of 2000 Page 13 of 18 the defendants and when they did not admit the correctness of the accounts maintained by the plaintiff Bank, then it was the duty of the plaintiff to prove the correctness of entries in Ext.6 is concerned; It is the settled propositions of law, as per Bankers’ Book of Evidence Act, 1891 that, Nationalized Bank’s Record are public documents and the same are admissible without further proof. The person, who prepares those documents, need not to be examined. On this aspect, the propositions of law has already been clarified by Hon’ble Courts in the ratio of the following decisions:- (i) AIR 2003 (Andhra Pradesh) 251—Gorantla Venkateshwarlu Vrs. B. Demudu—(Para 8)—Evidence Act, 1872—Section 74— Public document—Records of Nationalised Bank—Are public documents and hence admissible without any further proof— Examination of person who prepared that document—Not necessary. (ii) 2010 (1) CCC 62 (Bombay)—M/s. Navjivan Industries, Jalgaon & Ors. Vrs. Dena Bank, Jalgaon & another—Evidence Act, 1872—Section 4—Bankers Books Evidence Act, 1891— Entries in the Books of Accounts maintained by the Bank— Evidentiary value of—Banks ledger book—Photo copy of—Filed during course of evidence— No objection was raised when the document was tendered in the course of evidence— Books of Accounts maintained by the Bank has presumptive value. 20. Here in this suit at hand, at the time of tendering/admitting Ext.6 (copy of the ledger book of the plaintiff-Bank) including the Ext.4 in the evidence on behalf of the plaintiff-Bank during the trial of the suit before the Trial Court through its Administrative Officer (P.W.1), no objection was raised on behalf of the defendant No.1. For which, in view of the S.A. No.399 of 2000 Page 14 of 18 ratio of the aforesaid decisions, the documents vide Exts.4 & 6 on behalf of the plaintiff-Bank have become admissible under law. 21. It is the concurrent findings on facts by the Trial Court and First Appellate Court through appreciation of oral and documentary evidence of the parties that, the revival letter vide Ext.4 was executed by the defendant No.1 acknowledging his loan liabilities before the plaintiff- Bank. The scope of interference of the Second Appellate Court with the concurrent findings of facts given by the Trial Court and First Appellate Court has already been clarified by the Hon’ble Courts and the Apex Court in the ratio of the following decisions i.e. Kashinath Nandi (dead), after him his LRs. Tapan Kumar Nandi and others Vrs. Rudranarayan Mishra and others reported in 2014 (Supp-I) OLR 429, Madhukar Vrs. Smt. Nanda Madhukar Yene and another reported in 2017 (I) Civil Court Cases 515 (Bombay), C. Doddanarayana Reddy (dead) by LRs & others Vrs. C. Jayarama Reddy (dead) by LRs & others reported in 2020 (I) Apex Court Judgments, Raj Kali Vrs. Jitender reported in 2010 (3) Civil Court Cases 800 (P & H) and Sabaji Dhabji Dhore Vrs. Baburao Raghuji Kare reported in 2019 (I) MAH. LJ 183; “wherein it has been held that, “the Court of Second Appeal is not a Court of facts, because the final Court to appreciate the facts is the First Appellate Court and the Second Appellate Court is not a Court of facts. For which, High Page 15 of 18 S.A. No.399 of 2000 Court should not interfere with the concurrent findings of the facts arrived by the Trial Court and the First Appellate Court on appreciation of oral and documentary evidence of both sides, unless and until it is found that, the findings of facts given by the Courts are perverse or they have considered the inadmissible evidence ignoring the vital/material evidence.” 22. When, it is the concurrent findings of the Trial Court and First Appellate Court through appreciation of oral and documentary evidence of the parties that, the contents of Ext.6 (copy of the Ledger Book of the Bank) are correct being admissible under law and the defendant No.1 (loanee) has executed the revival letter vide Ext.4 acknowledging the outstanding loan dues against him and when the findings of the Trial Court and First Appellate Court are neither perverse nor arbitrary either for non-consideration of any material evidence or for taking up any inadmissible evidence into consideration, then at this juncture, it cannot be held that, the contents of Ext.6 was not correct and the Ext.4 (revival letter) was not executed by the defendant No.1 (loanee). 23. As per the discussions and observations made above, when, both the formulated substantial questions of law have been answered against the appellant (defendant No.1) and the contentions raised on behalf of the appellant (defendant No.1) for setting aside the judgments and decrees passed by the Trial Court and First Appellate Court against the appellant Page 16 of 18 S.A. No.399 of 2000 (defendant No.1) on the ground of abatement of the suit before the Trial Court against the defendant No.1 (guarantor) for non-substitution of his legal heirs on behalf of the plaintiff-Bank have become inacceptable under law for the reasons assigned above, then at this juncture, the question of making interference with the judgment and decree passed by the Trial Court and First Appellate Court against the defendant No.1 (appellant) through this second appeal filed by the appellant (defendant No.1) does not arise, though there is justification under law for making interference with the judgment and decree passed by the Trial Court and First Appellate Court against the defendant No.2 through this second appeal filed by the appellant (defendant No.1), because as per law, the suit had abated only against the defendant No.2 for non-substitution of his legal heirs by the plaintiff-Bank. So, the second appeal filed by the appellant (defendant No.1) is to be allowed in part on contest for making interference only in respect of the judgment and decree passed against the deceased defendant No.2 (guarantor), but not in respect of the judgment and decree passed against the defendant No.1 (borrower-appellant). 24. In result, the second appeal filed by the appellant (defendant No.1) is allowed in part on contest, but without cost. The judgments and decrees passed by the Trial Court as well as First Appellate Court in M.S. No.61 of 1982 and M.A. No.4 of 1999 Page 17 of 18 S.A. No.399 of 2000 against the appellant (defendant No.1-borrower) are confirmed, but the judgments and decrees passed by the Trial Court and First Appellate Court in M.S. No.61 of 1982 and M.A. No.4 of 1999 against the defendant No.2 (guarantor) are set aside due to the abatement of the suit and appeal against him (defendant No.2). 25. The suit be and the same vide M.S. No.61 of 1982 filed by the plaintiff-Bank is decreed on contest only against the defendant No.1, but dismissed against the defendant No.2 due to abatement of the suit against him (defendant No.2). The defendant No.1 alone is to pay the entire decreetal amount as per the judgment and decree passed by the Trial Court in M.S. No.61 of 1982 with its contractual rate of interest along with PI and FI thereon as per the mode and manner of calculations and payments clarified in the judgment and decree of the Trial Court passed in M.S. No.61 of 1982. Orissa High Court, Cuttack. 07.08. 2024//Utkalika Nayak// Junior Stenographer (A.C. Behera), Judge. Signature Not Verified Digitally Signed Signed by: UTKALIKA NAYAK Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 08-Aug-2024 12:49:05 S.A. No.399 of 2000 Page 18 of 18