JUDGMENT : H.B. Prabhakara Sastry, J. 1. The present appellant was the plaintiff in the Court of the Civil Judge (Sr. Dn.) Challakere, (hereinafter for brevity referred to as ‘trial Court’) in O.S. No. 2/2003 filed against the present respondents herein arraigning them as defendants. The suit was filed for recovery of money for a sum of Rs. 1,58,142/- and other incidental expenses and cost and interest at the rate of 14.5% p.a. plus 2% penal interest compounded half yearly from the date of suit till realisation by the sale of suit schedule mortgaged property and also personally from the defendants. 2. The summary of the case of the plaintiff in the trial Court is that, it is a Banking Company having its one of the Branch Office at the address shown in the cause title to the plaint. At the request of the defendants, it had advanced a loan of Rs. 3,24,000/- to the defendants for the purpose of purchase of a Tractor and Trailor. The defendants had executed a Promissory Note, a letter of Agreement and a simple Mortgage Deed in favour of the plaintiff-Bank in return of they availing a loan of Rs. 3,24,000/- from the plaintiff on 27.12.1999. Though the defendants had agreed to repay the said loan amount in installments along with interest at the rate of 16.5% p.a. with half yearly interest, they failed to repay the loan amount. This made the plaintiff to institute a suit against the defendants for recovery of a sum of Rs. 1,58,142/- and other incidental expenses and cost and also with interest at the rate of 14.5% p.a. + 2% penal interest compounded half yearly from the date of suit till realisation by the sale of suit schedule mortgaged property and also personally from the defendants. 3. The defendants who were served with the summons appeared through their counsel, but, they did not file their written statement. During the pendency of the suit, it was reported to the trial Court on 19.12.2005 that 2nd and 3rd defendants were died and the other defendants who were on record are the legal representatives of the deceased defendant Nos. 2 and 3. The trial Court recording the said submission made through a memo, permitted the amendment in the cause title of the plaint. 2 and 3. The trial Court recording the said submission made through a memo, permitted the amendment in the cause title of the plaint. Accordingly, the cause title of the plaint was amended confining the number of defendants in the trial Court to seven instead of nine. Thereafter, the suit against defendant No. 5 came to be dismissed for not taking the steps. The trial Court proceeded in the matter and by its impugned judgment dated 30.6.2006, observing that since the suit against defendant No. 5 is dismissed, the cause against other defendants would not survive, dismissed the suit of the plaintiff. It is against the said judgment and decree, the appellant has preferred this appeal. 4. During the pendency of the appeal, by bringing to the notice of the Court that there was change in the nomenclature of the plaintiff/appellant Bank due to amalgamation of the Banks, the appellant has carried out the permitted amendment in the nomenclature of the appellant-Bank. 5. The lower Court records were summoned and the same are placed before this Court. 6. The respondent Nos. 1, 2, 4 and 5 are being represented by their counsel. Service to respondent No. 3 was held sufficient. Respondent Nos. 6 and 7 though served, have remained unrepresented. 7. Heard the learned counsel from both side and perused the memorandum of appeal and impugned judgment. 8. For the sake of convenience, the parties would be referred to as per their ranks before the trial Court. 9. The learned counsel for the appellant in his arguments submitted that when the loan is based on a Promissory Note at Ex.P-1, the execution of which was not disputed by the contesting defendants, the trial Court failed to notice that liability of each of the defendants before it was joint and several. As such, inspite of the suit against defendant No. 5 being dismissed, the liability of the remaining defendants continued as against the plaintiff unabatedly, as such, suit ought to have been decreed against the remaining defendants/ respondents. 10. Per contra, learned counsel for the respondents in his arguments submitted that the suit against defendant No. 5 since has been dismissed, there is already a decree dismissing the suit against defendant No. 5. 10. Per contra, learned counsel for the respondents in his arguments submitted that the suit against defendant No. 5 since has been dismissed, there is already a decree dismissing the suit against defendant No. 5. In case the suit against other defendants is decreed by this Court, then, it leads to a conflicting decree in a single transaction, as such, the appeal cannot be decreed as prayed. 11. The argument of the learned counsel for the respondents on the above lines is not acceptable, for the reason that, suit against defendant No. 5 came to be dismissed in the trial Court on the date 23.11.2005 itself for not taking steps by the plaintiff to serve summons upon the said defendant. As such, the said dismissal of the suit as against defendant No. 5 was during the pendency of the suit. As such, he was not continued as a defendant in the suit when the said suit was finally disposed of under the impugned judgment and decree. Therefore, the dismissal of a suit against the defendant at the stage of service of summons itself for the reason of the plaintiff not taking steps to ensure the service of summons upon the defendant, would be as like the plaintiff not suing the said defendant. Therefore, the dismissal of the plaint by the trial Court under its impugned judgment and decree dated 30.6.2006 is with respect to the remaining defendants and the legal representatives of the deceased defendants who were on record only. As such, when there is no final judgment and decree against defendant No. 5 passed by the trial Court, the question of a conflicting decree coming into existence in case the appeal is allowed against the other defendants would not arise. 12. The plaintiff in order to prove its case, has examined one Sri V. Thippeswamy, its Manager, as PW-1, who in his examination-in-chief in the form of affidavit evidence has reiterated the contentions taken up by the plaintiff in its plaint. He has stated that the defendants approached the plaintiff-Bank for financial assistance for a sum of Rs. 3,24,000/- for the purpose of purchasing a Tractor and a Trailor. Considering their request, the plaintiff-Bank granted them a loan of a sum of Rs. He has stated that the defendants approached the plaintiff-Bank for financial assistance for a sum of Rs. 3,24,000/- for the purpose of purchasing a Tractor and a Trailor. Considering their request, the plaintiff-Bank granted them a loan of a sum of Rs. 3,24,000/- on 27.12.1999, in which regard, all the defendants executed an on-demand Promissory Note agreeing to repay the said sum together with interest at 16.5% p.a. compounded half yearly. The defendants also executed Take Delivery Letter on the same day agreeing that payment or acknowledgment made by them will save the limitation. The plaintiff has stated that the defendant executed on the very same day Loan Agreement and a registered simple Mortgage Deed. The plaintiff got the Promissory Note, the Loan Agreement and the Mortgage Deed marked as Exs.P-1, P-2 and P-3 respectively. Stating that as on 23.12.2002, the defendants are liable to pay to the plaintiff a sum of Rs. 1,58,142/- the plaintiff also got produced and marked a Ledger extract of the loan account (pass sheet) at Ex.P-4. As already observed above, the defendants have not filed their written statement and PW-1 was not cross-examined from the defendants' side. As such, the entire evidence led by PW-1 both, oral and documentary evidence, are un-denied and undisputed. 13. A perusal of document at Ex.P-1 i.e. a Promissory Note, shows that it has been executed by the defendants promising to pay a sum of Rs. 3,24,000/- together with interest at a minimum rate of 16.5% p.a. compounded quarterly for the value received, to the plaintiff, on demand jointly and severally. They have also executed a Take Delivery Letter with respect to the said Promissory Note. Thus, the Promissory Note is the Note executed by each of the defendants holding them liable jointly and severally to perform the promise made thereunder. Ex.P-2, the Loan Agreement and Ex.P-3, the simple Mortgage Deed, evidences the loan transaction between the plaintiff and the defendants as per the terms averred by the plaintiff in its plaint and reproduced by PW-1 in his evidence. Ex.P-3 also go to show that they have mortgaged the suit schedule property in favour of the plaintiff- Bank as a security for repayment of their loan borrowed from the plaintiff- Bank. Ex.P-3 also go to show that they have mortgaged the suit schedule property in favour of the plaintiff- Bank as a security for repayment of their loan borrowed from the plaintiff- Bank. Ex.P-4, the statement of account, go to show the details of the loan account from the date of its disbursement till 23.12.2002 and it shows that, as on the last date, the defendants owe to the plaintiff-Bank a sum of Rs. 1,58,142/- and interest thereupon from 1.1.2003. Since the evidence of PW-1 that the defendants had borrowed a loan from them for a sum of Rs. 3,24,000/- on 27.12.1999, agreeing to repay the same with a minimum interest at the rate of 16.5% p.a. compounded quarterly (however, the same is shows as compounded half yearly in the Loan Agreement at Ex.P-2) having remained un-denied and undisputed, it is clearly established that the defendants in the Court below were jointly and severally liable to the plaintiff-Bank for the suit claim and interest thereupon. The said loan transaction is secured by the mortgage of the suit schedule property as evidenced from Ex.P-3. However, the trial Court without going into the merits of the case, has dismissed the suit of the plaintiff only on the ground that the case against other defendants would not survive because of dismissal of the suit against defendant No. 5. 14. Since the said reasoning of the trial Court for dismissal of the plaintiff's suit is now been held incorrect and it is an erroneous finding and further, since it is held that the plaintiff has proved its case about the defendants' liability towards it for the suit claim, I am of the view that the judgment and decree under appeal deserves to be set aside and the suit of the plaintiff deserves to be decreed. However, the loan taken by the defendants being an agricultural loan, the rate of interest claimed at 16.5% from the date of the suit, appears to be on higher side. As such, the rate of interest be confined to 6% p.a. compounded half yearly. The relief of recovery of the suit claim by sale of the mortgaged suit schedule property would be only as against the shares of the defendants, excluding the share of original defendant No. 5. 15. Accordingly, I proceed to pass the following order: ORDER: The Appeal is allowed in part. The relief of recovery of the suit claim by sale of the mortgaged suit schedule property would be only as against the shares of the defendants, excluding the share of original defendant No. 5. 15. Accordingly, I proceed to pass the following order: ORDER: The Appeal is allowed in part. The judgment and decree dated 30.6.2006, passed by the learned Civil Judge (Sr. Dn.) Challakere, in O.S. No. 2/2003, is set aside. The suit of the plaintiff is decreed as against the original defendant Nos. 1, 4, 6, 7, 8 and 9 in their capacity as original defendants and as legal representatives of deceased defendant Nos. 2 and 3. The plaintiff-bank is entitled to recover from them jointly and severally, a sum of Rs. 1,58,142/- with interest thereupon at the rate of 6% p.a. compounded half yearly from the date of suit till realisation. The sale, if any, of the suit schedule mortgaged property, would be of the shares of all other defendants, including the legal representatives of deceased defendant Nos. 2 and 3, except the share of original defendant No. 5. Draw decree accordingly. The refund of Court fee to the appellant would be in accordance with law. The Registry is directed to transmit a copy of this judgment along with lower Court records to the lower Court without delay.