JUDGMENT : (R. NATARAJ, J.) This regular first appeal is filed by one of the legal heirs of the deceased defendant challenging the judgment and decree dated 17.09.2018 passed by the III Additional Senior Civil Judge, Belagavi (hereinafter referred to as the ‘trial Court’ for short) in O.S.No.49/2014, by which the suit was decreed and the legal representatives of deceased defendant were held jointly and severally liable to pay a sum of Rs.33,40,000/- to the plaintiffs along with interest at the rate of 12.5% per annum from the date of suit till realization. 2. The parties shall henceforth be referred to as they were arrayed before the trial Court. 3. The suit in O.S.No.49/2014 was filed by a guarantor/surety to recover a sum of Rs.38,17,600/- from the principal debtor/defendant along with interest at the rate of 18% per annum from 31.12.2013 till realization. The plaintiffs claimed that plaintiff No.1 being a partner of M/s. Century Fine Chemical Works raised a loan from State Bank of Mysore, Raviwar Pet Branch, Belagavi in the year 1998. The plaintiff No.2 who established business of Belgaum Construction Works had raised a loan from State Bank of Mysore, Raviwar Pet Branch, Belagavi. The defendant was the proprietrix of M/s. Kalyani Pharmaceuticals and that she had also applied for a loan from State Bank of Mysore, Raviwar Pet Branch, Belagavi and that the plaintiff No.1 had offered his property as surety for the loan raised by the defendant. The plaintiff No.1 executed prescribed documents in favour of State Bank of Mysore, Raviwar Pet Branch, Belagavi as surety for the loan sanctioned to the defendant. Later, the loan account of the defendant became a non-performing asset. The plaintiff No.1 was served with notices by the State Bank of Mysore, Raviwar Peth Branch, Belagavi for recovery of the dues which was followed by proceedings under the recovery of money due to Banks and Financial Institutions Act, 1993 before the Debt Recovery Tribunal, Bengaluru (for short ‘DRT’) in O.A.No.184/2005. This proceeding was in respect of the loan raised by plaintiffs No.1 and 2 as well as the surety offered by plaintiff No.1 for the loan raised by the defendant. The DRT issued a recovery certificate dated 18.07.2008 ordering the recovery of a sum of Rs.40,30,403/- with interest at the rate of 12.5% per annum. This proceeding was in respect of the loan raised by plaintiffs No.1 and 2 as well as the surety offered by plaintiff No.1 for the loan raised by the defendant. The DRT issued a recovery certificate dated 18.07.2008 ordering the recovery of a sum of Rs.40,30,403/- with interest at the rate of 12.5% per annum. Thereafter, the bank issued a notice under SARFAESI Act to recover the amount decreed under the recovery certificate and to proceed to recover it from the property offered by the surety/ plaintiff No.1. The plaintiffs claimed that the defendant was also served with the notice but she did not make any efforts to repay the dues and later died on 27.08.2011. The plaintiffs claimed that they thereafter held discussions with the bank for a ‘One Time Settlement’ of the dues in all the three accounts and paid a sum of Rs.1,05,00,000/- of which a sum of Rs.33,40,000/- was appropriated towards the dues of the defendant. The plaintiffs claimed that they were compelled to pay off the dues to the bank by selling off their house property. They contend that since defendant died, her legal representatives were liable to pay the amount to them. Therefore, plaintiff No.1 caused a notice to the legal representatives of the deceased defendant on 31.07.2013 calling upon them to pay a sum of Rs.33,40,000/-. However, the legal representatives of the defendant failed to pay the amount which compelled the plaintiffs to sue for recovery of the amount stated above. 4. Defendant No.1(a) filed his written statement which was adopted by defendant No.1(b). Defendant No.1(c) did not file any written statement. 5. Defendant No.1(a) contended that the business conducted by the deceased defendant did not come into his hands during or after the life time of the defendant. He claimed that he was not aware of the nature of business undertaken by the deceased defendant. He admitted that the defendant died on 27.08.2011 leaving behind him and his two sisters. He denied that the defendant was in need of money for business and that plaintiff No.1 had offered his property as security for availing loan from the State Bank of Mysore, Raviwar Pet Branch, Belagavi on 29.07.1998. He admitted that the defendant died on 27.08.2011 leaving behind him and his two sisters. He denied that the defendant was in need of money for business and that plaintiff No.1 had offered his property as security for availing loan from the State Bank of Mysore, Raviwar Pet Branch, Belagavi on 29.07.1998. He also denied that the account of the defendant was treated as a non-performing asset by the bank and that plaintiff No.1 was served with notice by the bank as he was the guarantor for the said loan. He also denied that he was served with a notice of recovery by the bank under the SARFAESI Act. He claimed that he was not aware that plaintiffs No.1 and 2 paid a sum of Rs.33,40,000/- to the State Bank of Mysore towards full and final settlement of all dues of the deceased defendant. He also denied that the plaintiffs have closed the loan account by utilizing the proceeds of the sale of their house. He admitted that a notice was caused by plaintiff No.1 on 31.07.2013 and that he replied to the said notice denying his liability. He contended that the suit was barred by limitation as the DRT had attached the property of plaintiff No.1 in O.A.No.184/2005 under the recovery certificate dated 18.07.2008. However, the plaintiffs had kept quiet till the death of the defendant and therefore contended that the suit is highly belated. He contended that he survived the death of the defendant, but he was not the legal heir of the defendant and had not succeeded to any property of the defendant so as to be liable to pay the amount to the plaintiffs. He claimed that he was not concerned with the proprietrix business of defendant as well as the loan raised by her. He also claimed that the business undertaken by defendant was not a business of the family and that it was closed even during the life time of the defendant. 6. He claimed that the property described in Schedule ‘B’ of the plaint cannot be attached for recovery of the amount. He claimed that he was constructing a multistoried building over the Schedule ‘B’ property by obtaining necessary permission from the City Corporation, Belagavi and that he had received substantial sums of money from intending purchasers of flats and shops in Schedule ‘B’ property. He claimed that he was constructing a multistoried building over the Schedule ‘B’ property by obtaining necessary permission from the City Corporation, Belagavi and that he had received substantial sums of money from intending purchasers of flats and shops in Schedule ‘B’ property. He therefore prayed that the suit may be dismissed. 7. Based of these contentions, the trial Court framed the following issues and additional issues: “1. Whether the plaintiffs prove that, the defendant No.1 availed business loan from SBM, Raviwar Pet, Belagavi on 29.07.1998 for which the 1 st plaintiff stood as guarantor by offering his own property as security? 2. Whether the plaintiffs prove that, the bank has filed money recovery suit in O.A.No.184/2005 before the DRT, Bangalore and on the basis of the decree passed in that case the bank was authorized to recover the dues by attaching the properties mortgaged by the plaintiff No.1? 3. Whether the plaintiffs prove that, they have cleared the loan of defendant No.1 in view of the notice issued under the SARFACIE Act? 4. Whether the plaintiffs are entitled to recover a sum of Rs.33,40,000/- with interest at the rate of 18% p.a. from the legal heirs of defendant No. 1? 5. What decree or order? ADDITIONAL ISSUE 1. Whether the suit is barred by limitation?” 8. Plaintiff No.1 was examined as PW.1 and marked Exs.P.1 to P.17. He also examined the Chief Manager of the bank as PW.2 who marked Exs.P.19 to P.23. Defendant No.1(a) was examined as DW.1 and he marked Exs.D.1 and Ex.D.1(a). 9. Based on the oral and documentary evidence, the trial Court held that the defendant had availed business loan from the State Bank of Mysore, Raviwar Pet Branch, Belagavi on 29.07.1998 for which plaintiff No.1 stood as guarantor/surety by offering his own property. It also held that the plaintiffs had proved that the State Bank of Mysore had filed proceedings for recovery of money in O.A.No.184/2005 before the DRT and on the basis of the recovery certificate issued in that case, the bank was authorized to recover the dues by attaching the properties offered as surety by plaintiff No.1. It also held that the plaintiffs had proved that they had cleared the loan availed by defendant from the State Bank of Mysore in view of proceedings initiated by the bank under the provisions of SARFAESI Act. It also held that the plaintiffs had proved that they had cleared the loan availed by defendant from the State Bank of Mysore in view of proceedings initiated by the bank under the provisions of SARFAESI Act. It further held that plaintiff No.1 having paid the dues of defendant was entitled to be recompensed under Section 145 of the Indian Contract Act, 1872 as there was implied promise to indemnify the surety. It perused Ex.P.21 which was a letter addressed by the bank to plaintiff No.1 wherein, it was shown that, out of a sum of Rs.1,05,00,000/- paid by the plaintiffs to the State Bank of Mysore, a sum of Rs.33,40,000/- was the amount payable by the defendant as the proprietrix of M/s. Kalyani Pharmaceuticals. Therefore, it held that the plaintiffs are entitled to recover the said sum of Rs.33,40,000/- along with interest at the rate of 12.5% per annum from Schedule ‘B’ property. Being aggrieved by the said judgment and decree, one of the legal heirs of the defendant has filed this appeal. 10. Sri. Anant Mandgi, learned Senior Counsel representing the legal representative of the deceased defendant raised the following contentions: (i) That there was no clear adjudication of the amount payable by the defendant in the recovery certificate issued by DRT in O.A.No.184/2005. He contends that a perusal of recovery certificate at Ex.P.14 shows that it was not only in respect of the surety offered by plaintiff No.1 but also in respect of the loan raised by plaintiffs No.1 and 2. Therefore, he contends that unless there was clear adjudication of the amounts payable by the defendant, the plaintiffs were not justified in paying a sum of Rs.33,40,000/- towards the outstanding of the defendant. He therefore contends that the plaintiffs cannot initiate proceedings for recovery of the said sum unless the same was ascertained in the manner known to law. (ii) He also contends that the proceedings under the SARFAESI Act was initiated, by which time, the defendant had already expired. He therefore contends that the plaintiffs cannot initiate proceedings for recovery of the said sum unless the same was ascertained in the manner known to law. (ii) He also contends that the proceedings under the SARFAESI Act was initiated, by which time, the defendant had already expired. He contends that the plaintiffs did not intimate the bank about the death of the defendant, but they on their own accord approached the State Bank of Mysore and settled the dispute with State Bank of Mysore by paying off a sum of Rs.1,05,00,000/- He contends that, when the defendant had expired by then, it was incumbent upon the bank to notify the legal representatives of the defendant before settlement of the dues payable. He contends that since the whole exercise was undertaken behind the back of the legal representatives of deceased defendant, the plaintiffs cannot initiate proceedings to recover the amount payable on account of defendant. (iii) He also contends that the business undertaken by defendant was not a business of the family and that the legal representatives of defendant have not succeeded to the business or to any of her properties. Therefore, he contends that the legal representatives of defendant have no obligation to pay the amount to the plaintiffs. (iv) He further contends that, though surety/guarantor has a right to recover the amounts paid by him or her to the creditor, but the same has to be ascertained in the manner known to law. In the instant case, the guarantor has chosen to pay off the State Bank of Mysore without there being proper adjudication of the amounts payable and hence, the plaintiffs cannot sustain an action to recover the amounts paid by them on account of the defendant. 11. Per contra, Sri.Shreevatsa S.Hegde, learned counsel for the plaintiffs contended that many facts are not disputed, namely that the defendant has raised a loan from State Bank of Mysore, Raviwar Pet Branch, Belagavi and that plaintiff No.1 offered his property as surety. The bank had initiated proceedings and had obtained a recovery certificate in O.A.No.184/2005, where the defendant was also one of the parties. He contends that as per the recovery certificate itself, the defendant had raised loan of Rs.12,00,000/- in July, 1995. The bank had initiated proceedings and had obtained a recovery certificate in O.A.No.184/2005, where the defendant was also one of the parties. He contends that as per the recovery certificate itself, the defendant had raised loan of Rs.12,00,000/- in July, 1995. He contends that the bank was entitled to recover the amounts ordered under the recovery certificate by proceeding against the property offered under the surety by plaintiff No.1. He contends that since the interest of plaintiff No.1 was at stake, he had no other option than to settle with the bank and pay off the amount payable by the defendant. He contends that PW.2 had marked Ex.P.21 which was a letter addressed by the bank to plaintiff No.1 wherein it was mentioned that out of a sum of Rs.1,05,00,000/- paid by the plaintiffs towards three accounts, a sum of Rs.33,40,000/- was appropriated towards the liability of the defendant. He therefore contends that by virtue of operation of Section 145 of the Indian Contract Act, the plaintiff No.1 is entitled to be indemnified by the defendant or her legal heirs to the extent they have succeeded to the property of the deceased defendant. He contends that Schedule ‘B’ property was the property of the husband of the defendant and that he died intestate leaving behind the defendant and his children. As such, the share of the defendant is now succeeded by the legal heirs of the defendant and hence, all of them are liable. He contends that since there is not much dispute regarding the liability of the defendant, and the payment made by plaintiff No.1 to the bank on account of the deceased defendant, the issue is no longer whether the defendants are liable, but the issue is as to how to proceed to recover the said amount. He contends that since there is a property available where the deceased defendant had an undivided share, the said property can be proceeded against to recover the amounts payable to the plaintiffs. He also contends that the plaintiffs are entitled to proceed against any other property of defendant which is succeeded by her legal heirs. He therefore contends that the impugned judgment and decree of the trial Court is just and proper and does not warrant any interference. 12. He also contends that the plaintiffs are entitled to proceed against any other property of defendant which is succeeded by her legal heirs. He therefore contends that the impugned judgment and decree of the trial Court is just and proper and does not warrant any interference. 12. We have considered the submissions of the learned Senior Counsel for one of the legal representatives of the defendant as well as the learned counsel for the plaintiffs. 13. After going through the records as well as the judgment and decree of the trial Court, the only point that arises for consideration in this appeal is: “Whether the plaintiffs had proved that they were entitled to recover a sum of Rs.33,40,000/- from the legal heirs of the deceased defendant and whether the plaintiffs were entitled to proceed against the legal representatives of the defendant to the extent of the share of the deceased defendant in Schedule ‘B’ property which was succeeded by her legal representatives ?” 14. Before we deal with the rival contentions, it is first appropriate to capture the facts that are not in dispute and the same are as follows: (i) The defendant was a proprietrix of M/s. Kalyani Pharmaceuticals which had raised a loan of Rs.12,00,000/- from State Bank of Mysore, Raviwar Pet Branch, Belagavi in the year 1995. The plaintiff No.1 had offered his property as surety for the loan raised by the defendant. Since the account of the defendant became a non-performing asset, State Bank of Mysore initiated recovery proceedings in O.A.No.184/2005 before the DRT, which resulted in a recovery certificate for a sum of Rs.40,30,403/- along with interest at the rate of 12.5% per annum (Ex.P.14). This recovery certificate was not only in respect of the liability of plaintiff No.1 as surety for the loan sanctioned to the defendant, but also was in respect of the loan raised by plaintiffs No.1 and 2, meaning thereby that the recovery certificate was a composite certificate issued in respect of the three liabilities. The defendant was also a party to the said proceedings but she did not challenge the same before any Court of law. (ii) The defendant died on 27.08.2011 leaving behind her legal heirs. It appears that the business of the defendant was closed down even during her life time. The defendant was also a party to the said proceedings but she did not challenge the same before any Court of law. (ii) The defendant died on 27.08.2011 leaving behind her legal heirs. It appears that the business of the defendant was closed down even during her life time. After her death, the bank initiated proceedings against the plaintiffs for recovery of the amounts payable under the recovery certificate. The plaintiffs thereafter have negotiated with the bank for a ‘One Time Settlement’ of dues so as to extricate the property offered for surety and accordingly, paid a sum of Rs.1,05,00,000/- being the total outstanding amount including the amount payable by the defendant. Ex.P.21 shows that out of Rs.1,05,00,000/- paid by the plaintiffs, a sum of Rs.33,40,000/- was appropriated to the loan obtained by the defendant. Therefore, it is more than clear that the plaintiffs had paid a sum of Rs.33,40,000/- as surety to close down the loan availed by the deceased defendant from State Bank of Mysore, Raviwar Pet Branch, Belagavi. 15. PW.2, an official of State Bank of Mysore deposed that out of Rs.1,05,00,000/- paid by plaintiff No.1, a sum of Rs.33,40,000/- was appropriated to clear the loan outstanding in the account of the defendant. Though the legal representatives of defendant disputed the amount, the same cannot be adjudicated in the suit filed by the plaintiff No.1. Ex.P.21 marked by PW.2 shows that a sum of Rs.33,40,000/- was appropriated out of Rs.1,05,00,000/-. If the legal representatives of defendant want to dispute this, they have to raise it in a separate suit against the bank and claim back any amount paid in excess by the plaintiff No.1. Even otherwise, a common sense approach shows that the principal sum of Rs.12,00,000/- raised by the defendant in 1995 would have cascaded beyond Rs.33,40,000/- by compounding the interest, etc. 16. By virtue of Section 145 of the Indian Contract Act, plaintiff No.1 being the surety was entitled to be indemnified by the defendant in respect of the amount paid by him to the bank. There was no escape for the defendant from this. However, the defendant expired in the year 2011 before the plaintiff No.1 paid off the amount to the State Bank of Mysore. There was no escape for the defendant from this. However, the defendant expired in the year 2011 before the plaintiff No.1 paid off the amount to the State Bank of Mysore. Therefore, the question that arises for consideration is whether the legal representatives of the deceased defendant were liable, more particularly when there is nothing to establish that they had succeeded to the business of the defendant or that the business was a going concern which the legal representatives of the defendant were pursuing. 17. Under Section 52 of the Code of Civil Procedure, 1908 the liability of the legal representatives of the judgment debtor is only to the extent of property they inherit from the judgment debtor. Therefore, even if it is treated as an independent business of the defendant, the legal representatives of the defendant cannot escape from the liability of the defendant if the plaintiffs are able to prove that the legal representatives of the defendant had succeeded to any portion of the property of the defendant then their liability would be limited to that extent. 18. In the case on hand, the Schedule ‘B’ property is admittedly a property of the husband of the deceased defendant. It is not the case of the legal representatives of the defendant that the husband of the deceased defendant had left behind any testament bequeathing the property. Therefore, by operation of law, the defendant was entitled to an undivided 1/4 th share in the Schedule ‘B’ property and since the defendant had died intestate, the interest of the deceased defendant in the Schedule ‘B’ property is now succeeded by her legal representatives. Therefore, the liability of the legal representatives of the deceased defendant is only to the extent of 1/4 th share in the Schedule ‘B’ property or in other properties of the deceased defendant that may come into the hands of the legal representatives of the defendant. 19. In view of the above, though there is no error committed by the trial Court in decreeing the suit to recover a sum of Rs.33,40,000/- along with interest at the rate of 12.5% per annum, the trial Court could not have held that the entire portion of Schedule ‘B’ property could be proceeded against to recover the said amount. To that extent, the impugned judgment and decree passed by the trial Court warrants interference. 20. To that extent, the impugned judgment and decree passed by the trial Court warrants interference. 20. In view of the above, we answer the point for consideration framed by us as follows: The plaintiffs had proved beyond doubt that they are entitled to recover a sum of Rs.33,40,000/-. However, the liability of the legal representatives of the defendant is only to the extent of the value of 1/4 th share in Schedule ‘B’ property that they succeeded to. 21. In view of the above, we proceed to pass the following: ORDER (i) The regular first appeal is allowed in part. (ii) The impugned judgment and decree dated 17.09.2018 passed by the III Addl. Senior Civil Judge, Belagavi in O.S.No.49/2014 directing the recovery of a sum of Rs.33,40,000/- is upheld. However, the liability of the legal representatives of the defendant is only to the extent of the value of 1/4 th share in Schedule ‘B’ property that they have succeeded. (iii) The executing Court shall take steps to value the 1/4 th share of the Schedule ‘B’ property and proceed against it and appropriate the same against the amount payable under the decree. (iv) It is open for the plaintiffs to execute this decree against the legal representatives of the defendant if it is found that the legal representatives have succeeded to any other properties of the deceased defendant. (v) It is made clear that the remaining 3/4 th portion of the Schedule ‘B’ property that the legal representatives of the deceased have succeeded from their father shall not be affected by the judgment and decree passed by the trial court and this Court. No order as to costs.