( 1 ) THIS appeal by the 7th defendant is preferred against the judgment and decree dated 30th september, 1978, passed by the civil judge, mangalore, in O. S. No. 30/1971. Respondent No. 1 is the plaintiff. Respondents 2 to 12 are defendants 1 to 6 and 8 to 12 respectively. During the pendency of the suit, defendants No. 12 expired. Therefore, his legal representatives were brought on record as defendants 13 to 18. They are respondents 13 to 18 in the appeal. In this judgment, the present appellant would be referred to as the 7th defendant. ( 2 ) DURING the pendency of the appeal, the appellant (the 7th defendant) died. His legal representatives are brought on record. In this judgment, the appellants being the legal heirs of the deceased 7th defendant, they would be referred as 7th defendant, respondent No. 1 as the plaintiff and respondents 2 to 11 and 13 to 18 as defendants 1 to 6 and 8 to 11 and 13 to 18 respectively. 2. 1 the trial court has passed a decree in the following terms:"the suit is decreed. Defendants Nos. 1 to 7 to pay to the plaintiff-bank a sum of Rs. 1,25,819-96 with future interest at the rate of 12 1/2 per cent per annum from the date of suit till this date and hereafter at the rate of 6 per cent per annum till realisation. The said defendants to pay the costs to the plaintiff-bank and to bear their own costs. The suit as against defendants Nos. 8 to 18 is dismissed directing them to bear their own costs. Let a decree be drawn accordingly. " ( 3 ) PLAINTIFF brought the aforesaid suit for recovery of a sum of Rs. 1,25,819-95 ps. , With future interest at the rate of 12 1/2 p. a. with costs. The suit was brought on the allegations that defendants 1 to 12 were thepartners of the partnership known as "malnad traders" and defendant No. 1-appanna hegde was the managing partner of the firm. That he obtained excise contract of right to vend liquor in coondapur taluk for the year 1969-70 for and on behalf of the partnership firm known as "malnad traders". That he obtained excise contract of right to vend liquor in coondapur taluk for the year 1969-70 for and on behalf of the partnership firm known as "malnad traders". That the defendant No. 1 as managing partner of the firm requested the bank to give the guarantee to the state government for due performance of the aforesaid excise contract in lieu of cash deposit of Rs. 3,16,500/- and accordingly, the plaintiff-bank gave the guarantee No. 3 of 1969 to the state government. That the 1st defendant-appanna hegde executed a counter guarantee in favour of the plaintiffs bank for and on behalf of the partnership firm undertaking to indemnify the bank. That the plaintiff-bank pursuant to bank guarantee No. 3 of 1969, paid a sum of Rs. 3,16,500/- to the state government on various dates, namely, on 27-5-1970 by cheque a sum of Rs. 1,05,500-00 and on 12-6-1970 by cheque a sum of Rs. 1,05,500-00 and on 27-6-1970 by cheque a sum of Rs. L,05,500-00. That after adjusting certain amounts deposited with the bank by the defendants, the amount remaining to be paid was a sum of Rs. 1,25,810-95 ps. , As on 20th march, 1971. That the defendants are liable to pay the same with hit' rest at 12 1/2% as per contract, trade usage and custom as well. Accordingly, the plaintiff prayed for a decree for the aforesaid sum jointly and severally against the defendants and also against the assets of the partnership firm known as "malnad traders" in the hands of the partners. ( 4 ) SRI appanna hegde- 1st defendant has filed a separate written statement. In his written statement, he has contended that though initially there was a partnership between defendants 1 to 12, but subsequently, defendants 2 to 6 and 8 to 12 failed to pay their capital contributions. Hence, about the end of november, 1969, the 1st defendant and the 7th defendant agreed between themselves to continue the business without the partnership of defendants 2 to 6 and 8 to 12; but with-one Sri H. Narayana Hegde, P. W. D. contractor as a 3rd partner. He also further pleaded about the bank guarantee No. 4 of 1969 obtained by him on 1-12-1969, from the plaintiff-bank from the coondapur branch. He also further pleaded about the bank guarantee No. 4 of 1969 obtained by him on 1-12-1969, from the plaintiff-bank from the coondapur branch. It is not necessary to refer to the said bank guarantee No. 4 of 1969 in detail, because we are not concerned with the same in this suit. The 1st defendant has also further contended that 7th defendant and h. Narayana hegde distributed among themselves the arrack shops of coondapur taluk as partners. The 7th defendant has filed a separate written statement. He has contended that he was not the partner of the so-called malnad traders; that there was no agreement among the defendants including the 7th defendant to constitute any partnership firm and the 1st defendant was not the managing partner of the alleged firm by name malnad traders. He also denied that there was any partnership entered into between the defendants with the object of carrying on vending of arrack. He has further pleaded that the original suit No. 5 of 1971 filed by the plaintiff-bank against the 1st defendant, 7th defendant and one narayana hegde in respect of the bank guarantee pertaining to the excise contract taken by defendant No. 1 for the year 1969-70 of the arrack shops in coondapur taluk. The original suit5 of 1971 related to bank guarantee No. 4 of 1969, executed by the plaintiff-bank. As already pointed out, we are not concerned with the bank guarantee No. 4 of 1969. The defendant No. 7 also denied the plaint averments and contended that the averments made in paragraphs 3 (d) and 3 (f) were not true; that he had not made any deposit or payment with the plaintiff-bank at the time the plaintiff executed bank guarantee No. 3 of 1969 in favour of the government; that he had not remitted on other occasion any sum to the plaintiff-bank as alleged in paragraph 3 (f) of the plaint. Thus, on the whole, the defendant No. 7 denied his liability. He contended that he was not liable to the suit claim in any manner. Thus, on the whole, the defendant No. 7 denied his liability. He contended that he was not liable to the suit claim in any manner. The plaintiff amended the plaint and introduced an additional averment in the plaint to the effect that defendants 2 to 12 held out themselves as partners of malnad traders and therefore, even if there was no partnership constituted by defendants 1 to 12 known as malnad traders, defenants 2 to 12 by their conduct weriliable as they held out themselves as partners of malnad traders. The 7th defendant filed additional written statement denying the additional plea introduced by the plaintiff by way of amendment. He contended that it was false to allege that the defendants were also partners of malnad traders by holding out or by estoppel; that he was nothing to do either in factor in law with the malnad traders or for that matter, he denied that malnad traders was a partnership firm. ( 5 ) DEFENDANT Nos. 8, 9, 10, 11 and 12 have filed separate written statements. They denied that they constituted the partnership firm as averred in the plaint and also denied their liability to the suit claim. Defendant Nos. 13,14 and 15, after they were brought on record, filed a memo adopting the written statement filed by defendant No. 12. The court guardian of defendant Nos. 17 and 18 has filed the separate written statement denying the suit claim and they also denied that there was any partnership firm known as malnad traders constituted by defendants 1 to 12. Defendants 2 to 5 have filed a separate written statement denying the plaint averments. They have further pleaded that the suit claim was false, frivolous and vexatious and was unsustainable in law. They have further pleaded that they were not the partners of the firm known as malnad traders; that they had not signed the partnership deed dated 24-4-1969, referred to in the plaint; that they were not liable for the suit claim. Defendant No. 6 has also filed a separate written statement he has denied the plaint allegations and has also further contended that he was not a partner of the firm known as malnad traders and did not sign the partnership deed dated 24-4-1969. ( 6 ) FIRST defendant pursuant to the amendment effected by the plaintiff, has filed additional written statement. ( 6 ) FIRST defendant pursuant to the amendment effected by the plaintiff, has filed additional written statement. He has contended that under the bank guarantee executed by the plaintiff in favour of the government, government was not entitled to recover the amount from the plaintiff in respect of the rentals due from the liquor vending contractors. Under the terms of the counter guarantee obtained by the plaintiff, the suit claim was not recoverable. Hence, the suit claim was not sustainable. ( 7 ) ON the basis of the pleadings of the parties, the trial court has framed the following issues: 1) whether the defendants have at any time constituted themselves into a firm called "malnad traders" for the purpose of vending arrack or for any other purposes? 2) whether defendants 2 to 12 have signed the partnership deed dated 24-4-1969? 3) whether defendants 2 to 6 and 8 to 12 failed to pay their capital contributions as contended by the first defendant? 4) whether defendants 1 and 7 along with h. Narayana hegde, p. w. d. contractor agreed between themselves to continue the partnership business? 5) whether the first defendant has not been constituted as the managing partner of the firm? 6) whether the first defendant has not bid at the auction on behalf of the firm? 7) whether the counter-guarantee executed by the first defendant in favour of the bank is a fraudulent and collusive one and the same is not binding on defendants 7 to 12? 8) whether the bank guarantee given by the first defendant on behalf of "malnad traders" is illegal, void and unenforceable as opposed to law and public policy and as such, the plaintiff cannot claim any reimbursement in respect of such payment from defendants 7 to 12? 9) whether the plaintiff is not entitled to claim interest? 10) to what reliefs the parties are entitled? Additional issues framed on 7-10-1977: 1) whether the plaintiff proves that defendants are partners of the firm "malnad traders" by holding out or by estoppel? 2) whether the defendants prove that the suit is not maintainable for the reasons stated in the additional written statement of defendant No. 1, dated 17-8-1977? ( 8 ) IN support of the case of the plaintiff, the plaintiff examined two witnesses asp. Ws. 1 and 2 and marked 18 documents as exs, p-1 to 18. 2) whether the defendants prove that the suit is not maintainable for the reasons stated in the additional written statement of defendant No. 1, dated 17-8-1977? ( 8 ) IN support of the case of the plaintiff, the plaintiff examined two witnesses asp. Ws. 1 and 2 and marked 18 documents as exs, p-1 to 18. On behalf of the defendants, defendants 7, 8, 9, 10 and 11 were examined as d. ws. 1 to 5 respectively. They marked 8 documents as exs. D-1 to d-8. On appreciation of the evidence on record, the trial court came to the conclusion that the recitals contained in ex. P-1did not show that the bank guarantee was executed for and on behalf of the firm called malnad traders, of which defendants 1 to 12 were partners. That ex. P-1only recorded the address of defendant No. 1 and nothing more. Therefore, on the basis of ex. P-l, it cannot be held that the plaintiff-bank proved the existence of the partnership firm with M/s. Malnad traders with defendants 1 to 12 as its partners. It also further held that defendants 1 to 7 had made a representation to the plaintiff-bank that they constituted themselves into a partnership firm under the name and style called "malnad traders. " Therefore, they were partners of the said firm by holding out that defendants 8 to 12 were not shown to have made any such representation to the plaintiff-bank. Therefore, it cannot be held that defendants 8 to 12 were partners of the firm malnad traders or were partners of the said firm by holding out therefore, suit liability could be fastened only on defendants 1 to 7 and not on the other defendants. The trial court, accordingly, answered issues 1 and 2 and additional issue No. 1. Issues 3 and 4 against the 1st defendant. Issue No. 5 was answered in the affirmative and it was held that defendant No. 1 constituted as the managing partner of the firm known as malnad traders, of which defendants 1 to 7 by representation were the partners. On issue No. 6, it was held that the first defendant offered the bid at the auction for and on behalf of the partnership firm. Issue Nos. On issue No. 6, it was held that the first defendant offered the bid at the auction for and on behalf of the partnership firm. Issue Nos. 7, 8 and additional issue No. 2 were considered together by the trial court and it was held that the bank guarantee and counter guarantee marked as exs. P-1and p-2 respectively were not fraudulent and collusive documents and were binding on defendants 1 to 7 and not on defendants 8 to 12. Issue No. 8 was held against the defendants. On additional issue No. 2, it was held that the bank guarantee and counter guarantee were enforceable as such the suit was maintainable. On issue No. 9, it was held that the plaintiff-bank was entitled to claim interest at the rate of l2 1/2%. ( 9 ) CONSEQUENTLY, the trial court has decreed the suit as referred to above against defendants 1 to 7 as partners of the malnad traders. 9. 1. Defendants-1 to 6 have not preferred any appeal. It is only toe defendant No. 7, who has come up in appeal. ( 10 ) IN the light of the contentions urged on both the sides, the following point sarise for consideration: 1. Whether the excise contract for the year 1969-70, for right of retail vend of arrack in coondapur taluk was obtained by defendant No. 1 for and on behalf of the alleged partnership firm known as malnad traders? 2. Whether bank guarantee ex. P-1 was executed by the plaintiff-bank in favour of the state government to indemnify the state government for and on behalf of the malnad traders? 3. Whether ex. P-4 was executed by defendants 2 to 7? 4. Whether ex. P-4 pertained to the excise contract for the year 1969-70, for the right of retail vend of arrack in coondapur taluk? 5. Whether it is a case in which the power under order 41, Rule 33 of the c. p. code can be exercised? 6. Whether the decree of the trial court is sustainable as against defendant no, 7. In case if the decree against defendant No. 7 is not sustainable, whether on application of order 41, Rule 33 of the c. p. code, the decree passed against defendants 2 to 6 is liable to be interfered with? 6. Whether the decree of the trial court is sustainable as against defendant no, 7. In case if the decree against defendant No. 7 is not sustainable, whether on application of order 41, Rule 33 of the c. p. code, the decree passed against defendants 2 to 6 is liable to be interfered with? ( 11 ) POINT No. 1: no doubt, in the plaint, it is alleged that defendants 1 to 12 constituted partnership firm known as malnad traders, and for and on behalf of the partnership firm, defendant No. 1 obtained the excise contract for retail vend of liquor in coondapur taluk for the excise year 1969-70. It is also averred by defendant No. 1 that he took the aforesaid excise contract for and on behalf of the partnership firm known as malnad traders. However, he contended that the partnership, which was started with the partners of defendants 1 to 12 came to be modified and it became a partnership between defendants 1, 7 and one narayana hegde, as the other defendants did not contribute their shares. On this point, it is not necessary for us to go into the question as to who were the partners; whether there was a partnership known as the malnad traders, and if so, who were the persons, who constituted it. Under this point, we are only required to find out as to whether the excise contract was obtained for and on behalf of the partnership firm. As per Rule 6 of the Karnataka excise (lease of the right of retail vend of liquors) rules, 1969, which held the field at the relevant point of time, a tender submitted jointly by more than one person shall be rejected unless the tender was by a firm registered under the Partnership Act and submitted by a person duly authorised by the firm. The Rule actually read as follows: "joint tenders:- a tender submitted jointly by more than one person shall be rejected, unless the tender is by a firm registered under the Partnership Act, 1932 (Central Act 9 of 1932) and is submitted by the person duly authorised by the firm. " 11. 1. It is not the case of any of the parties that the partnership alleged in the suit was a registered partnership. No registered deed of partnership was produced. " 11. 1. It is not the case of any of the parties that the partnership alleged in the suit was a registered partnership. No registered deed of partnership was produced. On the contrary, a copy of the partnership deed was produced as ex. P-3. The trial court has held that it has not been proved that ex. P-3 was a deed of partnership constituted by the partners consisting of defendants 1 to 12. Ex. P-1 bank guarantee executed by the plaintiff-bank refers to the excise contract in question as the one obtained by defendant No. 1-appanna hegde. No doubt, he is described as managing partner of M/s. Malnad traders, but the alleged partnership not being the registered firm could not have been the tenderer. If the alleged partnership was the tenderer and the excise contract was given in the name of the partnership firm, the bank should have referred to the excise contract as the one pertaining to the partnership firm and it should have given guarantee for the liability of the partnership. In addition to this, exs. D-1, d-7 and p-7 fairly establish that the excise contract in question was obtained by appanna hegde in his personal capacity and not on behalf of the partnership firm. Ex. D-7 is a list of excise contractors for the year 1969-70 of the Mangalore district. It is dated 3-/-1969, issued by the deputy commissioner (excise), Mangalore to the tahsildar, coondapur taluk. Regarding coondapur taluk, Sri Appanna Hegde s/o Ramanna Hegde, coondapur, has been shown as the contractor for the year 1969-70, having obtained the excise contract on a monthly rental of Rs. 1,05,500/ -. It (ex. D-7) also further stated that 'the licences had already been issued to all the contractors for the shops notified and the tahsildars were requested to collect the monthly rental from the contractors of the concerned taluk within the time limit prescribed. No part-payment should be allowed in respect of the monthly rentals. Whenever payments are not made in time the fact be intimated to the concerned excise inspector and excise assistant inspector. ' this is an authentic document, which clearly shows that for the excise year 1969-70, in respect of coondapur taluk, Sri B. Appanna Hegde-defendant No. 1 herein was the excise contractor. Ex. Whenever payments are not made in time the fact be intimated to the concerned excise inspector and excise assistant inspector. ' this is an authentic document, which clearly shows that for the excise year 1969-70, in respect of coondapur taluk, Sri B. Appanna Hegde-defendant No. 1 herein was the excise contractor. Ex. D-1 is a certified copy of the letter written by the deputy commissioner (excise), S. K. Mangalore to the chairman, vijaya bank limited. This document also shows that there was a bank guarantee given by the plaintiff-bank, to the deputy commissioner of excise for 1,06,050/- on behalf of Sri Appanna Hegde, arrack contractor of coondapur by guarantee No. 4 of 1969, dated 1-12-1969. It may be mentioned here that the suit claim relates to guarantee No. 3 of 1969. However, it is not in dispute that guarantee No. 3 of 1969 and guarantee No. 4 of 1969 relate to the same excise contract for the year 1969-70, obtained by Sri B. Appanna hegde for Coondapur taluk. The guarantee No. 4 of 1969 was executed by the plaintiff-bank, coondapur branch for the month of November 1969; whereas the bank guarantee No. 3 of 1969 covered the period for three months rent later than November 1969. Ex. P-7, dated 9-5-1970, is the demand notice issued by the deputy commissioner, mangalore, to the manager of the plaintiff-bank. In this notice, the deputy commissioner has described Sri B. Appanna hegde (1st defendant) as arrack contractor of coondapur. In the said notice, it has been further stated thus: "whereas Sri B. Appanna hegde, arrack contractor, coondapur, who has entered into a contract with the government for retail vend of liquor in respect of arrack shops of coondapur taluk, for the lease year 1969-70 and that you have undertaken to pay on his behalf the amount of Rs. 3,16,500-00 according to the bank guarantee issued by you vide No. 3/1969, dated 11-6-1969. " The further contents of ex. P-7 need not be reproduced. Thus, this notice also clearly establishes that the excise contract in question was taken by Sri B. Appanna hegde in his personal capacity and the bank guarantee was also furnished by the plaintiff- bank in respect of the said contract, which was obtained by Sri B. Appanna hegde as an individual and not for and on behalf of the partnership firm. Ex. Ex. D-8 is a notice issued by the tahsildar, coondapur to b. Appanna hegde, calling upon him to pay the rental due for the month of august, 1969 with interest, which also shows that Sri B. Appanna hegde was the excise contractor. If the partnership were the excise contractor, the notice for payment of the monthly rental ought to have been issued in the name of the partnership firm. In addition to this, it is not the case of the plaintiff- bank that any katha is maintained in the name of the firm. ( 12 ) THE bank has produced the accounts extract as ex. P-16 pertaining to the suit claim. It is maintained in the name of defendant No. 1 under bank guarantee No. 3 of 1969. Of course, defendant No. 1 is described as managing partner of malnad firm, but the account is not in the name of the partnership firm. The entries in ex. P-16 also do not indicate that any amount was paid by the partnership. There is no oral evidence produced by the bank explaining each of the entries, but as the entries stand, it is not possible to hold that any amount at any time was paid by any of the defendants 2 to 12 or by the alleged partnership - malnad traders. Added to this, it is also relevant to notice that in respect of bank guarantee No. 4 of 1969, the plaintiff-bank had filed a suit O. S. No. 5 of 1971, in the court of civil judge, udupi. The plaint filed in that suit is marked as ex. D-3. In that plaint, only three persons were impleaded in their individual capacity, they were appanna hegde (defendant No. 1 in the present suit), Sri H. Hirianna shetty (the present defendant No. 7) and h. Narayana hegde (of whom a reference has been made by defendant No. 1 in his written statement in the present suit ). The plaintiff-bank stated that the 1st defendant (sri b. Appanna hegde) bid at the auction held by the government of Mysore and obtained the right for retail vend of liquor in respect of the arrack shops at coondapur for the year 1969-70. The 1st defendant could not pay the sum of Rs. 1,06,050/- required from him towards one month rental for the arrack shops to the deputy commissioner of excise. The 1st defendant could not pay the sum of Rs. 1,06,050/- required from him towards one month rental for the arrack shops to the deputy commissioner of excise. That the 1st defendant approached the plaintiff-bank to give a bank guarantee to the government of Mysore in lieu of cash deposit of Rs. 1,06,050/- required to be deposited by him to the government. The bank having agreed to the same executed the bank guarantee No. 4 of 1969, dated 1-12-1969 guaranteeing payment of the aforesaid sum of Rs. 1,06,050/- for due payment of one month's rent due from the 1st defendant. On the same day, the defendants executed a counter guarantee in favour of the plaintiff-bank against any loss or damage that may be caused to the bank by reason of executing the bank guarantee No. 4 of 1969, dated 1-12-1969 to the government. Thus, from the averments made in the plaint filed in O. S. No. 5 of 1971 marked as ex. D-3, it is clear that the excise contract in question was not of the alleged partnership firm known as malnad traders, but it was the individual venture of defendant No. 1. O. s. No. 5 of 1971 was decreed by the trial court. There were two appeals preferred by h. Narayana hegde and h. Hirianna shetty (defendant No. 7 herein) separately before this court in the form of regular first appeal. R. f. a. No. 86/1974, was preferred by h. Narayana hegde and r. f. a. No. 95/1974, was preferred by Sri H. Hirianna Shetty. Those appeals were heard together and decided by a common judgment on 21-1-1983. A certified copy of the judgment has been produced in this appeal and it has been marked as ex. D-9. In para 6 of the judgment, it is stated thus: "sri ramachandra Rao made it clear that though the plaintiff had pleaded that defendants 2 and 3 were partners in the business along with defendant 1 and were therefore principally liable, he is not pressing that case as it has not been made out in the evidence. He also fairly and rightly submitted that if the recitals in ex. P-1 and p-2 are not clear and a doubt arises in regard to the period to which they pertain, it is legally permissible to take into consideration the surrounding circumstances for ascertaining the intention of the parties. He also fairly and rightly submitted that if the recitals in ex. P-1 and p-2 are not clear and a doubt arises in regard to the period to which they pertain, it is legally permissible to take into consideration the surrounding circumstances for ascertaining the intention of the parties. He further made it clear that having regard to the recitals in the two documents, there is absolutely no scope for drawing any inference that the documents are either not clear or that there is any doubt in regard to the period to which they pertain. " Therefore, the division bench of this court raised only the two following points for determination: 1. Whether the guarantee given by the appellants in ex. P-2 read with ex. P-1, was a continuing guarantee under which they agreed to reimburse the plaintiff-bank in respect of the payment made by it as rent and interest payable in respect of any month between 1-12-1969 and 30-4-1970? 2. Whether the guarantee given by the appellants under ex. P-2 read with ex. P-1was to reimburse the plaintiff only in respect of the payment of rental and interest for the month of november, 1969? Exs. P-1and p-3, bank guarantee and counter guarantee respectively, concerned herein had been referred to in the aforesaid judgment it is clear from the said judgment that the question as to whether the present defendants 1 and 7 and narayana hegde were the partners of the firm known as malnad traders was not denied. It was not the case of plaintiff-bank in O. S. No. 5 of 1971 that there was a partnership known as malnad traders constituted by defendants 1 to 12, and, it obtained the excise contract of coondapur taluk for the excise year 1969-70, even though the suit claim pertained to the very same excise contract in question. Thus, we are of the view that excise contract in question was obtained by defendant No. 1 - Sri Appanna Hegde in his own individual capacity and not as managing partner of the alleged partnership firm known as malnad traders nor on behalf of any such partnership firm. It was his individual venture. Accordingly, point No. 1 is answered in the negative. ( 13 ) POINT No. 2: ex. P-1is the bank guarantee executed by the plaintiff-bankin favour of the governor of Mysore acting through the deputy commissioner of south kanara district. It was his individual venture. Accordingly, point No. 1 is answered in the negative. ( 13 ) POINT No. 2: ex. P-1is the bank guarantee executed by the plaintiff-bankin favour of the governor of Mysore acting through the deputy commissioner of south kanara district. The said bank guarantee reads thus: "in consideration of the governor of Mysore acting through the deputy commissioner of south kanara district having agreed to accept this bank guarantee No. 3/1969 for Rs. 3,16,500/- (rupees three lakhs sixteen thousand and five hundred) of the vijaya bank Ltd. , A public limited liability banking company recognised under the company's Act, with its registered office situate at Mangalore in south kanara district, Mysore state, represented by its manager at Mangalore branch Mr. P. Subbanna shetty, residing at mangalore, south kanara district, in lieu of cash deposit of Rs. 3,16,500/- required from M/s. Malnad traders, vrindavan hotel, coondapur, towards 3 months' rent of the shop or group of shops in respect of which the right of retail vend of liquors is confirmed on him for the due fulgiment by him, we, the vijaya bank Ltd. , Hereinafter referred to as the bank, do hereby undertake to pay to the government to the extent of Rs. 3,16,500/- (rupees three lakhs sixteen thousand and five hundred) against any loss or damage caused to or suffered or would be caused to or suffered by the government by reason of any breach by the said contractor of any of the terms and conditions of the said cash deposit on the deputy commissioner. "we, the vijaya bank Ltd. , Do hereby undertake to pay the amounts and payable under this guarantee without any demur, merely a demand from the government stating that the amount claimed is due by way of loss or damage caused to or suffered or would be caused to or suffered by the government by reason of any breach by the said contractor of any of the terms and conditions towards said cash deposit or by reason of the contractor's failure to fulfil the terms of cash deposit. Any such demand made on the bank shall be deemed to be conclusive and sufficient as regards the bank to show that the said amount is due and payable by the bank under this guarantee. However, our liability under this guarantee shall be restricted to the extent of Rs. 3,16,500/ -. Any such demand made on the bank shall be deemed to be conclusive and sufficient as regards the bank to show that the said amount is due and payable by the bank under this guarantee. However, our liability under this guarantee shall be restricted to the extent of Rs. 3,16,500/ -. We, the vijaya bank Ltd. , Further agree that the guarantee herein contained shall remain in full force and effect during the period from 1st july, 1969 to 30th june, 1970 and that it shall continue to be enforceable till (torn out) of the government under or by virtue of the terms and conditions have been fully paid and its claims satisfied or discharged or till the deputy commissioner or any person authorised on his behalf certifies that the terms and conditions have been fully and properly carried out by the said contractor and accordingly discharges the guarantee. Unless such a demand or claim under this guarantee is made on us or before the 30th june, 1970, we shall be discharged from all liability under this guarantee. "subject as aforesaid, we, the vijaya bank Ltd. , Further agree with the government that the government shall have the fullest liberty without our consent and without affecting in any manner our obligations hereunder to vary any of the terms and conditions or to extend time performance by the said contractor from time to time or to postpone for any time or from time to time any of the powers exercisable by the government against the said contractor and to forbear or enforce any of the terms and conditions and we shall not be relieved from our liability by reason of any such variation, or extension being granted to the said contractor or for any forbearance act or omission on the part of the government or any indulgence shown by the government to the said contractor or by any matter or thing whatsoever which under the law relating to sureties would, but for this provision have effect of so relieving us. We, the vijaya bank Ltd. , Lastly undertake not to revoke this guarantee during its currency except with the previous consent of the government in writing. Dated 11th day of june, 1969. We, the vijaya bank Ltd. , Lastly undertake not to revoke this guarantee during its currency except with the previous consent of the government in writing. Dated 11th day of june, 1969. " From the aforesaid bank guarantee it is clear that it was given by the bank in respect of the excise contract of retail vend of liquor obtained by appanna hegde to pay the rental for 3 months. Throughout the document, the expression used is referable to appanna hegde only and not to the partnership firm. He is also referred to as the contractor. As there is no ambiguity in the words contained in ex. P-1, it is not necessary to take into consideration the surrounding circumstances. Even the surrounding circumstances also do not go to show that the bank guarantee was executed regarding the liability of the partnership firm - malnad traders. That it was executed regarding the individual contract taken by appanna hegde is also clear from the other documents marked in the case to which we have already adverted to while considering point No. 1. To elucidate the said statement, we may refer to the documents exs. P-7, p-15, and ex. D-3 and d-7. Accordingly, point No. 2 is answered as follows: "the bank guarantee ex. P-1was executed by the plaintiff-bank in favour of the state government undertaking to pay the rental arrears for three months was in respect of the excise contract taken by appanna hegde for the excise year 1969-70 regarding the right of retail vend of arrack in coondapur taluk and not in respect of, nor on behalf of the partnership firm - malnad traders. " ( 14 ) POINT No. 3: the trial court has held that ex. P-4 has been executed by defendants 2 to 7 and not by defendants 8 to 12. The contention of Sri Ramdas, learned counsel appearing for the 1st respondent-plaintiff is that the trial court has committed an error in arriving at the conclusion merely on thebasis of comparison of the signatures when there is substantive evidence on record. The learned counsel has placed reliance on the evidence of P. W. 1, who has deposed that defendants 2 to 12 executed ex. P-4; that ex. P-4 was typed in the office of the plaintiff-bank and defendants 2 to 12 signed before him. Defendant-7 (appellant herein) has denied the fact that he had signed ex. P-4. The learned counsel has placed reliance on the evidence of P. W. 1, who has deposed that defendants 2 to 12 executed ex. P-4; that ex. P-4 was typed in the office of the plaintiff-bank and defendants 2 to 12 signed before him. Defendant-7 (appellant herein) has denied the fact that he had signed ex. P-4. Similarly, defendants 8,9,10 and 11 who have been examined as d. Ws. 2 to 5 respectively have also denied the execution of ex. P-4. They have also denied that they constituted the partnership firm along with the other defendants. No doubt, P. W. 1 in his examination-in-chief has stated that defendants 1 to 7 were personally known to him and he did not know defendants 8 to 12 personally but knew them by their name; that defendants 1 to 7 and other defendants came to him with a request to issue a bank guarantee and he obtained the necessary documents from the defendants; that the approval was given by the higher authorities of the bank for executing thc. bank guarantee. He further deposed that on 11-6-1969 he executed the bank guarantee in favour of deputy commissioner of excise; that ex. P-4 was typed in the plaintiff-bank; that all the 12 partners had come and they signed ex. P-4; that ex. P-3 was given earlier to ex. P-4. Of course, in the cross-examination, nothing worth has been elicited. However, it is relevant to notice that ex. P- 4, according to the bank was executed by defendants 2 to 12 in order to indemnify the bank in respect of the liability which may be undertaken by the 1st defendant as managing partner of the partnership firm. Therefore, the case of the plain tiff-bank is that as ex. P-2 was executed by the 1st defendant as managing partner of the partnership firm giving counter-guarantee to indemnify the bank for the liabilities which the bank may sustain or incur by reason of enforcement of the bank guarantee ex. P-1executed by the bank in favour of the state government. If that was the object and intendment in obtaining ex. P-2 we fail to understand why at all a separate document of the type of ex. P-4 was necessary when alt the 12 partners together could have executed a counter-guarantee as per ex. P-2. This indirect method of binding over defendants 2 to 12 was unnecessary. If that was the object and intendment in obtaining ex. P-2 we fail to understand why at all a separate document of the type of ex. P-4 was necessary when alt the 12 partners together could have executed a counter-guarantee as per ex. P-2. This indirect method of binding over defendants 2 to 12 was unnecessary. All the 12 partners together could have executed ex. P-2 and could have given an undertaking directly to indemnify the bank. This casts a serious doubt about the coming into existence of ex. P-4 on 11-6-1969 and the acceptability of the evidence of P. W. 1. In addition to this, it may be relevant to notice that ex. P-4 does not refer to ex. P-2. It is neither with reference to any counter-guarantee given by the 1st defendant nor the bank guarantee given by the bank as per ex. P-1. We shall separately deal with this aspect of the matter while considering point No. 4, as to the true scope of ex. P-4. As far as point No. 3 is concerned, it is relevant to notice that the trial court has held that the plaintiff has failed to prove that defendants 8 to 12 have executed ex. P-4. Of course, the trial court has held that the plaintiff has proved that ex. P-4 has been executed by defendants 2 to 7. Defendants 2 to 6 have not come up in appeal and have not challenged the finding on this aspect of the matter. But that circumstance itself cannot be made a ground to reject the case of the 7th defendant that he had not executed ex. P-4 nor there was any partnership constituted by defendants 1 to 12. Ex. P-4 does not bear the seal of the bank, even though, according to P. W. 1, the document ex. P-4 was typed in the office of the plaintiff-bank. Even the place and date are not typed but they are written in ink. This portion of ex. P-4 has been marked as ex. P-4 (a ). P. w. 1 does not give any explanation in this regard. Regarding ex. P-4 (a) he has stated thus: 'i don't remember who has written ex. P-4 (a ). I do not remember who has struck off the words "for malnad traders and partners" in ex. P-4. i do not remember who has made the correction name on ex. P-4. P. w. 1 does not give any explanation in this regard. Regarding ex. P-4 (a) he has stated thus: 'i don't remember who has written ex. P-4 (a ). I do not remember who has struck off the words "for malnad traders and partners" in ex. P-4. i do not remember who has made the correction name on ex. P-4. " These features occurring on the face of ex. P-4 cast grave doubt in our mind as to the coming into existence of ex. P-4 on 11-6-1969. Further ex. P-4 was also not produced along with the plaint nor it was referred to in the plaint. This document was produced at a later stage after the plaint was amended on 13-10-1976. It may be relevant to notice that ex. P-4 is the main document on the basis of which alone defendants 2 to 12 have to be held liable for the suit claim. Therefore, if really ex. P- 4 had come into existence on 11-6-1969, it would have been one of the documents which should have been produced along with the plaint or at any rate it should have been referred to in the plaint. No such reference is found in the plaint. Therefore, we are of the view that in the light of the finding recorded by the trial court that the plaintiff has failed to prove that defendants 8 to 12 have executed ex. P-4 and in view of the various circumstances adverted to above, it is not possible to accept the case of the plaintiff-bank that ex. P-4 was executed by defendant 7 or the other defendants 2 to 6 on 11-6-1969. ( 15 ) IN this regard Sri Ramdas, learned counsel for the 1st respondent-plaintiff has drawn the attention of the court to the document ex. P-6. It is contended on the basis of ex. P-6 that if the defendants 2 to 7 had not executed ex. P-4, there was no necessity for the defendants to furnish the statement of assets and liabilities as per ex. P-6. No doubt ex. P-6 is signed by defendant 7 and it is a statement of assets and liabilities of defendant 7 in which he has been described as a partner of malnad traders also. But from this document, it is not possible to make out that it was furnished in connection with ex. P-4. Ex. P-6. No doubt ex. P-6 is signed by defendant 7 and it is a statement of assets and liabilities of defendant 7 in which he has been described as a partner of malnad traders also. But from this document, it is not possible to make out that it was furnished in connection with ex. P-4. Ex. P-6 also does not bear the date and the seal of the bank. Normally any correspondence or the document received by the bank are given inward numbers with the seal of the bank and the initial of the receiving clerk. But in ex. P-6 no such inward number nor the seal of the bank nor the initial of the bank official who received it, are found. Therefore, it is not possible to hold on the basis of ex. P-6 that ex. P-4 was executed by defendants 2 to 7 or at any rate by defendant 7 on 11-6-1969. Hence on point No. 3 it is held that the plaintiff has failed to prove that ex. P-4 was executed by defendants 2 to 7 on 11-6-1969. ( 16 ) POINT No. 4:ex. P-4 reads thus:"to the manager, the vijaya bank Ltd. , Light house hill road, mangalore-3. Dear sir, we, the undersigned, beg to inform you that we are the partners in the firm of "malnad traders" c/o hotel vrandavan, coondapur, s. k. and are jointly and severally responsible for the liabilities thereof. We shall notify you in writing of any change that may take place in the partnership (which notice shall not be effected until acknowledged by the bank) and all the present partners will be liable to you on any obligations which may be standing in the firm's name in your books on the date of acknowledgment of such notice and until all such obligations shall have been liquidated. Sri B. Appanna hegde, managing partner is hereby authorised to act on behalf of the firm and to draw, accept, endorse, negotiate, discount or sell bills of exchange and to borrow moneys with or without security, to sign all loan bonds and papers to receive moneys to give discharge and to operate upon the deposit or loan account on behalf of the firm and the undersigned on behalf of the firm "malnad traders" and personally, are liable for such acts and liabilities. Mangalore yours faithfully, 11-6-1969 (for malnad traders) sd/- 1. Mangalore yours faithfully, 11-6-1969 (for malnad traders) sd/- 1. B. Appanna hegde 2. B. Jalajakshi r. Rai 3. B. Jayasoorya rai 4. B. Jayanthi rai 5. B- jayavura rai 6. K. Ratnakar shetty 7. Hirianna shetty 8. Girijamma shedthi 9. K. b. prabhakar halumbi 10. H. Vishwanath shervagar 11. K. Appaji halambi 12. H. Vittal hegde. " A reading of ex. P-4 leaves no doubt that it was executed by the signatories to the said documents as partners of malnad traders only undertaking the liability jointly and severally of the partnership and holding themselves liable to the bank as partners of the firm of any obligation which may be outstanding in the firm's name in the bank's account. It also further authorises appanna hegde, managing partner of the firm to act on behalf of the firm and to draw, accept, endorse, negotiate, discount or sell the bills of exchange and to borrow moneys with or without security, to sign all loan bonds and papers, to receive moneys to give discharge and to operate upon the deposit or loan account on behalf of the firm and the signatories to the said document are personally liable for such acts and liabilities of the firm. ( 17 ) THE contention of the learned counsel for the 1st respondent-plaintiff is that whatever liability undertaken by appanna hegde as managing partner of the firm is agreed to be bound by the other partners as partners as well as in their personal capacity. Therefore, as appanna hegde under ex. P-2 undertook to indemnify the bank for the loss that may be caused to it by reason of the enforcement of bank guarantee, the other defendants 2 to 12 are liable on the basis of exs. P-4, p-5 and p-6. ( 18 ) IT is contended that a reading of exs. P-2 and p-4 together makes it clear that defendants 2 to 12 gave an undertaking to indemnify the bank, and to hold themselves liable to the bank for the acts of appanna hegde, therefore they are liable to the suit claim. ( 19 ) IT is not possible to accept the contention of learned counsel for the plaintiff-1st respondent no doubt, ex. ( 19 ) IT is not possible to accept the contention of learned counsel for the plaintiff-1st respondent no doubt, ex. P-2 was executed by appanna hegde as managing partner of the alleged partnership firm malnad traders giving counter guarantee to the plaintiff-bank to indemnify it the loss that may be caused to it by reason of enforcement of ex. P-1. We have already held that ex. P-1 related to the individual excise contract obtained by appanna hegde and not the one obtained by the partnership firm. Ex. P-4 only authorised appanna hegde to undertake the liability and to do certain acts for and on behalf of the partnership firm pertaining to the business of the partnership firm. In the first portion of ex. P-4, the signatories to the said document undertook to discharge the liability relating to the business of the partnership as may be entered in the account books of the plaintiff-bank. The first portion also did not cover the bank guarantee given by the plaintiff-bank in respect of the individual contract obtained by defendant 1. Therefore, ex. P-4 cannot be read as authorising appanna hegdc to undertake the liability on behalf of the partnership in respect of the matter unconnected with the partnership business, and it cannot also be read that the signatories to the said document undertook to discharge the liability unconnected with the partnership business. In addition to this, it is also relevant to notice that the bank has produced the extract of the accounts as ex. P-16. It is not also in the name of the partnership firm but it is in the name of appanna hegde described as managing partner of the firm malnad traders. We have already pointed out that no entry in ex. P-16 is relatable to the payment made by the partnership or any of the defendants as partners of the alleged partnership firm. Hence we are of the view that ex. P-4 did not pertain to the bank guarantee given by the plaintiff-bank as per ex. P-1nor did it pertain to the excise contract obtained by defendant 1 in his individual capacity for the excise year 1969-70 for the retail vend of arrack in coondapur taluk. Point No. 4 is answered accordingly in the negative. P-4 did not pertain to the bank guarantee given by the plaintiff-bank as per ex. P-1nor did it pertain to the excise contract obtained by defendant 1 in his individual capacity for the excise year 1969-70 for the retail vend of arrack in coondapur taluk. Point No. 4 is answered accordingly in the negative. ( 20 ) POINT No. 5: before taking up point No. 5 for consideration, it is necessary to state that the findings so far recorded by us would go to show that the decree passed by the trial court against defendant 7 cannot at all be sustained. The decree is passed against defendant 7 mainly based on ex. P-4 and p-6 which, as already pointed out above, do not pertain to the bank guarantee executed by the plaintiff-bank pertaining to the excise contract in question as the said excise contract did not pertain to the partnership firm. Therefore, the next question that arises for consideration under point No. 5 is as to whether the decree passed by the trial court against defendants 2 to 6 can also be sustained; in other words whether this is a case in which the Provisions of order 41, Rule 33 of c. p. code can be invoked. ( 21 ) NO doubt defendants 2 to 6 have neither appealed nor represented through counsel. However, they are impleaded as respondents in the appeal. During the course of hearing, this point was raised by the court and the learned counsel on both sides were also heard on this point. ( 22 ) SRI ramdas, learned counsel appearing for the 1st respondent-plaintiff has placed reliance on the decisions of the Supreme Court reported in AIR 1965 SC 1874 , nirmala bala ghose and another v balal chand ghose and others and AIR 1982 SC 98 , choudhary sahu (dead) by l. rs. V state of bihar. Based on these decisions, the learned counsel contended that as defendants 2 to 6 have neither preferred an appeal nor are they represented in the appeal and nor any contention is put forth on their behalf, they have allowed the decree passed against them to become final. In such a situation, exercise of power under order 41, Rule 33, of the c. p. code is not warranted. Further exercise of power under order 41, Rule 33, C. P. C. is discretionary. In such a situation, exercise of power under order 41, Rule 33, of the c. p. code is not warranted. Further exercise of power under order 41, Rule 33, C. P. C. is discretionary. When the parties themselves have allowed the decree to become final, the Provisions of order 41, Rule 33 should not be invoked. ( 23 ) WHETHER the Provisions of Rule 33 of order 41 of the c. p. code are applicable, and whether the power under order 41, Rule 33, C. P. C. can be invoked depends upon the facts and circumstances of each case. The Supreme Court in nirmali bala ghose's case AIR 1965 SC 1874 on which reliance is placed by Sri Ramdas, learned counsel for the first respondent has observed thus: "when a decree of the court of first instance is allowed by a party to become final, by not appealing against it, another party to the litigation, whose rights are otherwise not affected by the decree, cannot invoke the powers of the appellate court under order 41, Rule 33, to pass a decree in favour of the party not appealing. Order 41, Rule 33 is primarily intended to confer power upon the appellate court to do Justice by granting relief to a party who has not appealed, when refusing to do so would result in making inconsistent, contradictory or unworkable order. . . . . . " Of course, in the instant case, appeal is preferred only by defendant 7 who is directly affected by the decree under appeal. The ground for passing a decree against defendant 7 and defendants 2 to 6 is that they along with defendant 1 held out to the bank that they were the partners of malnad traders and as such they were liable for the suit claim. This conclusion was arrived at by the trial court on the basis of exs. P-2, p-4 and p-6. We have already held that ex. P-4 cannot be relied upon and it cannot beheld to have come into existence on 11-6-1969. Further the suit claim did not relate to the business of the alleged partnership firm. Thus, the grounds on which the decree is passed against defendants 2 to 7 are held to be unsustainable. P-2, p-4 and p-6. We have already held that ex. P-4 cannot be relied upon and it cannot beheld to have come into existence on 11-6-1969. Further the suit claim did not relate to the business of the alleged partnership firm. Thus, the grounds on which the decree is passed against defendants 2 to 7 are held to be unsustainable. If in such a situation the decree passed against defendants 2 to 6 is allowed to remain in tact, it will introduce not only inconsistent and contradictory decrees but will also become unworkable. It is relevant to notice that the trial court has passed a decree against defendants 2 to 6 as partners of the alleged partnership firm viz. ; Malnad traders on the ground that they held out to be the partners. We have not gone into the question as to whether there was any such partnership firm in view of the findings recorded by us on points 1 to 4. If the decree passed by the trial court against defendants 2 to 6 is allowed to remain, the decree-holder will not only be entitled to proceed against defendants 2 to 6 personally but also against the assets of the partnership firm, if any. Consequently, it is clear that it would become impracticable to execute the decree. Further, if the decree were to be executed against the assets of the partnership firm of which defendant 7 was held to be a partner as held by the trial court, his interest also would suffer, though the suit would have been dismissed against them by reason of the finding recorded by us. Therefore, we are of the view that this is a fit case in which the Provisions of order 41, Rule 33 of the c. p. code should be invoked. ( 24 ) SRI ramdas, learned counsel for the 1st respondent-plaintiff has also placed reliance on a decision of the Supreme Court in choudhary sahu's case AIR 1982 SC 98 . In the said case, the Supreme Court quoted with approval the observations made in nirmala bala ghose's case AIR 1965 SC 1874 , and further held thus: "12. The object of this Rule is to avoid contradictory and inconsistent decisions on the same questions in the same suit. In the said case, the Supreme Court quoted with approval the observations made in nirmala bala ghose's case AIR 1965 SC 1874 , and further held thus: "12. The object of this Rule is to avoid contradictory and inconsistent decisions on the same questions in the same suit. As the power under this Rule is in derogation of the general principle that a party cannot avoid a decree against him without filing an appeal or cross-objection, it must be exercised with care and caution. The Rule does not confer an unrestricted right to re-open decrees which have become final merely because the appellate court does not agree with the opinion of the court appealed from. 13. Ordinarily, the power conferred by this Rule will be confined to those cases where as a result of interference in favour of the appellant further interference with the decree of the lower court is rendered necessary in order to adjust the rights of the parties according to justice, equity and good conscience. While exercising the power under this Rule, the court should not iose sight of the other Provisions of the code itself nor the Provisions of other laws, viz. , The law of limitation or the law of court fees etc. 14. In these appeals, the collector on the basis of the material placed before him allowed certain units to the various appellants. In the absence of any appeal by the state of bihar, there was no justification for the commissioner to have interfered with that finding in favour of the appellants. The facts and circumstances of these appeals are not such in which it would be appropriate to exercise the power under order 41, Rule 33. The commissioner as well as the high court committed a manifest error in reversing the finding regarding allotment of units to the various appellants in the absence of any appeal by the state of Bihar when the same had become final and rights of the slate of Bihar had come to and to that extent by not filing any appeal or cross-objection within the period of limitation. "the conclusion arrived at by us does not go counter to the proposition of law laid down in the above decision. ( 25 ) IN har narain v chandgi, etc. "the conclusion arrived at by us does not go counter to the proposition of law laid down in the above decision. ( 25 ) IN har narain v chandgi, etc. , Air 1987 SC 1325 , the Supreme Court hasheld thus:"the learned counsel for the respondents however, urges that four of the persons who purchased the property along with the appellant har narain have not chosen to prefer the appeal and suit therefore cannot be dismissed in toto. It is difficult to agree with this submission. The purchase was a joint purchase and if the suit for pre-exemption was filed against all the joint purchasers, the other joint purchasers are also parties before us though they have not preferred an appeal. If the suit which is one for pre-emption against all the joint purchasers is to be dismissed against one, it has to be dismissed against all. We do not see any difficulty in setting aside the decree passed against the non-appealing joint vendees also under the Provisions of order 41, Rule 33. The appeal is therefore, allowed. No costs. " ( 26 ) IN the instant case also, as already pointed out by us, the decree against defendant 7 cannot be sustained. Consequently, it cannot also be sustained as against defendants 2 to 6 because the grounds on which the decree is passed against defendant 7 and defendants 2 to 6 are the same. Therefore, we are of the view that it is a fit case to invoke the power under order 41, Rule 33 of the c. p. code, and the decree passed against defendants 2 to 6, even though they have not appealed but they are parties to the appeal, can be set aside as it is liable to be set aside as against defendant 7. Point No. 5 is answered in the affirmative. ( 27 ) POINT No. 6: it follows from the findings recorded on point Nos. 1 to 5 that the decree passed by the trial court against defendant 7 is not sustainable. We have also further held that it is a fit case to invoke the power under order 41, Rule 33 of the c. p. code and to set aside the decree passed against defendants 2 to 6 even though they have not appealed. Therefore, the decree passed against defendants 2 to 6 is also liable to be interfered with. Accordingly, pointno. Therefore, the decree passed against defendants 2 to 6 is also liable to be interfered with. Accordingly, pointno. 6 is answered as follows: the decree passed by the trial court against defendant 7 is not sustainable. On the same grounds on which the decree passed against is not sustainable, the decree passed against defendants 2 to 6 is also liable to be interfered with on invoking the power under order 41, Rule 33 of the c. p. code. ( 28 ) BEFORE parting with the case, it is also necessary to point out that the trial court has dealt with in detail on the question of applicability of Section 28 of the Partnership Act on the ground that defendants 1 to 7 were the partners of malnad traders by holding out. In the light of the findings recorded by us under point Nos. 1 to 4, the question as to whether defendants 2 to 7 represented to the bank as partners of the alleged partnership firm known as 'malnad traders' does not arise. Therefore, we have not framed any specific point in this regard and considered the same. ( 29 ) FOR the reasons stated above, the appeal is allowed. The judgment and decreepassed by the trial court as against defendants 2 to 7 are set aside. The decree of the trial court passed against defendant 1 Sri Appanna hegde is not disturbed. As far as defendants 8 to 12 are concerned, the suit has already been dismissed by the trial court against which the plaintiff-bank has not come up in appeal. Thus, the suit of the plaintiff-bank stands decreed only as against defendant 1. ( 30 ) NORMALLY in the event of allowing the appeal, the 1st respondent-plaintiff is required to pay the costs. However, in the instant case, the person mainly responsible for all this is defendant 1; but for his conduct, the bank would not have entered into this transaction and would not have been made to suffer and to go through stress and strain of the litigation. Therefore, we are of the view that defendant 1 should be made to pay the costs of defendant 7. We order accordingly. --- *** --- .