JUDGMENT Arun Kumar Goel, J.— 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. 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, 4. 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, 4. The attachment was objected to by the judgment debtors No. 2 to 6 before this Court under Order 21, Rules 58 and 59, C.P.C. vide objection petition which was registered as C.M.P No 127/81, Ultimately, in terms of statement made by Sh Om Prakash Sharma, Advocate and Smt Pushpa Sharma (defendant No. 2) the objection petition under Order 21, Rules 58 and 59, C PC (O M P. No 127/81) was ordered to be dismissed as withdrawn and the judgment debtors on the basis of the statement made by Pushpa Devi and Sh. Om Parkash Sharma were allowed to pay the decretal amount in regular four monthly instalments of Rs 10,000 each, commencing from 3 5. Plaintiff filed a suit for recovery of Rs. 18,000 against the defendants, as according to the plaintiff he had paid Rs, 18,000 in terms of the judgment and decree passed by this Court in civil suit No 9/77. It is further not in dispute that the amount was paid by the plaintiff by means of receipts Ex P-16 to Ex. P-27 and is certified in terms of certificate Ex P 28 issued by the Bank showing that the amount of Rs. 18,000 had in fact been paid by the plaintiff for satisfaction of the decree in question, Plaintiff also claimed interest at the rate of 18% pa from the date of filing of the suit till the date of payment of the suit amount. This suit was contested and resisted by the defendants on a number of pleas namely, suit not being within limitation as also not being maintainable and defender No. 1 not being a firm as contemplated by law, and it has no legality Raising of loan by late Amar Chand Sharma was not specifically disputed but satisfaction of decree passed by this Court was pleaded by the defendants In this behalf the pleas raised by the defendants in their written statement particularly in paras No. lf 3 and 4 needs to be specifically referred to : “1. Regarding para 1 it is submitted that late Shri Amar Chand might have taken loan from the State Bank of India and the same has been paid by the defendants in accordance with the decree of the Honble High Court. The decree stands satisfied by the replying defendants. 2. * * * * * 3. Regarding para 3, it is submitted that the State Bank of India filed a suit for recovery of money against late Shri Amar Chand deceased and the plaintiff was one of the defendants in that suit later on Shri Amar Chand died and defendants 2 to 6 being his L.Rs. were brought on record. Decree was passed by the Honble High Court and pursuant to which decree was satisfied by the replying defendants out of the proceeds of the property. 4. Regarding para No. 4, it is submitted that so far as the replying defendants remember they themselves satisfied the decree from their own source as well as by disposing of the property left by late Shri Amar Chand. The replying defendants are in possession of no property left by late Amar Chand and as such are not liable to satisfy any liability." The pleas raised by the defendants in their written statement were controverted by the plaintiff in his replication and those averred in the plaint were re affirmed. On the aforesaid pleadings, the parties went to trial on the following issues : 1. Whether the plaintiff has paid a sum of Rs 18,000 in discharge of the decree passed by the Honble High Court against the defendants in his capacity as a guarantor ? OPP 2. Whether the suit is within limitation ? OPD 3. Whether no property of deceased Amar Chand is in possession of the defendants as his successors-in-interest and as such the defendants are not liable for the sum of Rs, 18 000 claimed ? OPD 4. Whether the defendant No. 1 is not a firm as contemplated by law and it has no legal entry ? If so, to what effect ? OPD 5. Relief 6. OPD 4. Whether the defendant No. 1 is not a firm as contemplated by law and it has no legal entry ? If so, to what effect ? OPD 5. Relief 6. Trial Court after recording the evidence and after consideration of the entire evidence produced by the parties both oral as-well as documentary, decreed the suit as aforementioned, which was questioned by the defendants in appeal before the lower Appellate Court by means of impugned judgment and decree, the appeal filed by the defendants was allowed and thereby suit of the plaintiff was dismissed and it is in this background that the plaintiff is an appellant before this Court, 7. Shri K.S. Rathore, Advocate, had put in appearance on behalf of the defendants in the present appeal, Appeal was partly heard on 18-12-1996 and was again taken up on 6-3-1997 when Shri K.S. Rathore stated that his clients are not forthcoming to give instructions in the matter Again when this appeal was taken up today, C.M.P. No. 95/97 came up before the Court which was filed by Shri K.S. Rathore seeking leave of this Court to withdraw his power of attorney on behalf of the respondents because his clients were not corning to give instructions to him despite telephonic message as well as registered letter. In these circumstances, the application being C.M.P. No. 95 of 1997 was allowed and the matter being heard ex pane in the absence of the respondents, 8. Shri Ajay Mohan Goel, learned Counsel appearing for the plaintiff has stated that the lower appellate Court has fallen into error while allowing the appeal and dismissing the suit of the plaintiff by completely mis-reading the material documents which were there on the file by way of evidence from the execution petition No 2/81 of this Court. In this behalf special reference was made to Ex P-5 warrant of attachment, Ex. P-6, Ex. P-7 objections under Order 21, Rules 58 and 59, C.P.C. filed by the objector after the attachment had been effected as is evident from Ex, P-6 In support of his aforesaid submissions statement of the learned Counsel for the judgment debtor (present defendant No 2) made vide Ex. PS which is duly signed by Pushpa Sharma was also pressed into service. PS which is duly signed by Pushpa Sharma was also pressed into service. In order properly appreciate this submission, statement as well as the order passed by this Court both are reproduced here-in-below : “Statement of Shri O.P. Sharma Counsel for the objector/judgment debtors.—The objectors/judgment debtors do not press their objection petition O.M.P. No. 127/81 filed under Order XXI, Rules 58 and 59 read with section 151, C.P.C. They have prayed that they may be allowed to pay the decretal amount in easy instalments They further undertake to pay the decretal amount in regular four monthly instalments of Rs, i0,000 each commencing from 30-7-1982. They further pray that after they have paid first two instalments as above, the attached property in Kullu may be released to enable them to raise loan for discharging the balance decretal amount. The objectors/judgment debtors further undertake that in case such property is released from attachment and they raise any amount thereon either by sale or by mortgage or by whatever nude they would first utilise the amount for the payment of the decretal amount. The attached property located at Manali shall, however, remain attached till the entire decretal amount is satisfied and in case of default of instalment in accordance with the above terms, the same shall be liable for sale for realisation of the balance decretal amount.” "Order In view of the above statement made by the learned Counsel for the objectors/judgment-debtors, the objection petition O.M.P. No. 127/81 is dismissed. The learned Counsel for the decree holier has no objection if the judgment-debtors are allowed to pay the decretal amount. In instalments as stated by the learned Counsel for the objectors/judgment debtors provided that in the event of default in payment of any of the instalment, the rest of the decretal amount is made realisable in lump sum by sale of the attached property. The judgment-debtors are accordingly allowed to pay the decretal amount in the manner suggested in the statement of the learned Counsel for the judgment-debtors. The case be, now listed on 30-7-1982 when the first instalment of Rs, 10,000 shall be paid," 9. The judgment-debtors are accordingly allowed to pay the decretal amount in the manner suggested in the statement of the learned Counsel for the judgment-debtors. The case be, now listed on 30-7-1982 when the first instalment of Rs, 10,000 shall be paid," 9. In the face of this position detailed here-in-above in this judgment, it is evident that the plea raised by the defendants regarding the property at Kullu belonging to defendant No. 2 Pushpa Devi is not at all tenable and in any case they were precluded on account of estoppel feeding from raising the same. When the said property alongwith Booth No. G-10, Urban Estate, Manali had been attached and the turn of sale of both these properties came up, the defendants for the reasons best known to them did not care to get those objections adjudicated, rather chose to withdraw those objections and undertook to hquidate the balance decretal amount in lour monthly instalments of Rs. 10,000 each and in fact they had paid three such instalments, whereas on the other hand plaintiff had deposited a sum of Rs 18000, which position stands clearly established as detailed in this judgment and is supported from the documentary evidence Ex P-16 to Ex. P-28. 10. In the aforesaid background the sole question is whether the defendants have inherited any property from late Sh Amar Chand Sharma their predecessor-in-interest or not. Defendants have taken stand to the effect that they have not inherited anything from Amar Chand but still they have satisfied the decree in question as is clear from paras 1, 3 and 4 of the written statement referred to here-in-above. In this context, it may be appropriate to mention that in case the defendants had not inherited anything from late Amar Chand, in terms of the decree Ex. P-2 they were not liable to pay anything and in case they had inherited then in that event their liability was limited to the extent of estate inherited by them. In either situation liability of the present plaintiff to satisfy the decree m civil suit No 9/77 was only limited to the extent the amount that had not been paid by the defendants, Defendants have not specifically disputed the deposit of Rs 18,000 by the plaintiff Conveniently they have also not given the detail of the amount(s) actually deposited by them. Further, the loan was not raised by Dhani Ram present plaintiff regarding which civil suit No. 9 of 1977 and execution petition No. 2/81 came to be tiled in this Court. He was only there as a guarantor and from the facts and circumstances of the execution petition No. 2/81, it is evident that part of the amount had been paid by the plaintiff and the remaining amount had been paid by the defendants in satisfaction of the decree and thus m those circumstances execution petition No. 2/81 came to be dismissed as fully satisfied. 11. In law the present plaintiff was legally entitled to have recovered the amount paid by him in satisfaction of the decree in his capacity as a guarantor. At this stage in order to properly appreciate this aspect of the case, a few more facts may also be taken note of Amar Chand d ceased had admittedly applied for allotment of Booth No. G 10, hereinafter referred to as the Manali property had ia fact been allotted to him although the defendants have pleaded that substantial amount had been deposited by then and they are now in possession of the booth in question. It has come in the evidence of the defendants that the value of the Manali property is about rupees one lac. The allotment having been admittedly made to Amar Chand, for all intents and purposes the said property can be safely said to have been inherited by the defendants. Manali property was never allotted to any of the defendants, payment of amount is the incidence of allotment, because if the allotment had not been made there was no question of anything being inherited by them much less making any payment for such allotment on inheritance. In this view of the matter, the finding recorded by the lower appellate Court that simply because payment had been made by the defendants regarding the Manali property they did inherit it from Amar Chand Sharma is not correct. In coming to this conclusion, the lower appellate Court had further fallen into error by not at ail caring to examine other documents especially Ex. In coming to this conclusion, the lower appellate Court had further fallen into error by not at ail caring to examine other documents especially Ex. P-1, P-2, P-6.-P 7, P-8 and P-9, as also time sought for making payment during the course of execution petition No. 2 of 1981 before this Court in these circumstances, it is manifestly clear that the first appellate Court had not only mislead but also mis-interpreted the oral as well as documentary evidence on record while passing the impugned judgment and decree. 12. Cumulative effect of the aforesaid discussion is that the impugned judgment and decree passed by the lower appellate Court is liable to be set aside and it is ordered accordingly. Consequently, the suit of the plaintiff is decreed for Rs 18,000 with interest at the rate of 6% p.a from the date of filing of the suit i.e. 4-5-1985 till the date of actual payment, defendants are also held for payment of costs in the suit, first appeal as well as in the present appeal. Appeal allowed.