( 1 ) (JUDGMENT of the Bench delivered by Kondaiah, J.) 1. This appeal by the plaintiff is directed against the Judgment and decree of the Court of the Subordinate Judge, Kakinada in O. S. 79 of 1973 refusing to grant a decree against the defendants to proceed against a schedule house property owned by late Batchu Mallikharjunudu, father of defendants 3 to 7.

( 2 ) DEFENDANTS 2 and 3 were partners of a firm carrying on cloth business in the name of the first defendant. By pledging its clothes, a loan of Rs. 10. 000/- was taken from the plaintiff-Bank by the firm, with an over draft facility to the extent of Rs. 5,000/ -. Defendants 1 to 3 executed an agreement and a promissory note on 24-9-1969. They also obtained another loan of Rs. 2,300/- by pledging raw material and executed a promissory note dated 12-2-1970. Another loan of Rs. 4,700/- was obtained on the pledge of raw material on 16-2-1970. According to the plaintiff, late Batchu Mallikharjunudu, father of defendants 3 to 7 had mortgaged a Schedule house by depositing his title-deed on 22-12-1970 at samalkota, with intent to create a mortgage to the maximum limit of Rs. 25,000/ for advances made or to be made by the Bank to the first defendant. After the death of Mallikharjunudu, all his properties devolved on his heirs, defendants 3 to 7, on 21-6-1972. Subsequently, the present suit for recovery of Rs. 24,098,18/- had been filed on 7-4-1973.

( 3 ) THE plea of defendants 1 to 3 as per their written statement is that the defendant delivered the documents of title to the plaintiff-Bank, but not his father late Mallikharjunudu and no mortgage by deposit of title deeds has been created by Mallikharjunudu. a Schedule property was the self-acquired property of Mallikharjunudu, and even if it Is held that D-3 created a mortgage by deposit of title-deeds, it can bind only the undivided 1/5th share of the third defendant in a Schedule property. The written statement filed by the 4th defendant is to the effect that his father Mallikharjunudu never created any mortgage in favour of the plaintiff either for his own debt or for the debt of the third defendant, that a Schedule property is the self-acquired property of Mallikharjunudu and that, in any event, the alleged mortgage will not bind defendants 4 to 7 and they are not even necessary parties to the suit. Defendants 5 to 7 filed a memo adopting the written statement of the fourth defendant. The trial court framed the following issues: (1) Whether the suit mortgage is true, valid and supported by consideration? (2) Whether the suit is barred by time? (3) To what relief?

( 4 ) THE plaintiff examined P. Ws. 1 to 3, the then Agent, the Head cashier and the Head Clerk respectively, of its branch at Samalkota and filed Exs. A-1 to A-23 in support of the suit claim. P. Ws. 1 to 3 have been examined to prove that late Mallikharjunudu had come to the Bank at samalkota on 22-12-1970 and actually handed over the title deed pertaining to the a Schedule house to PW. 1, the Bank Agent with intent to create a mortgage to a maximum limit of Rs. 25,000/- by deposit of title deed for the advances made or to be made by the plaintiff to the first defendant-partnership Firm. Ex A-23 dated 8-8-1969 is a loan application fileby the first defendant-Partnership Firm before the Plaintiff-Bank for a loan of Rs. 15,000/-, wherein it was stated that the loan would be guaranteed by Sri Batchu Mallikharjunudu, father of Batchu Nookaraju and that the partition deed of his property worth about Rs. 15,000/- would be deposited as collateral security. Subsequently, an agreement for cash credit, Ex. A-1 was executed by defendants 1 to 3 in favour of the plaintiff-Bank on 8-9-1969. Exs. A-2 to A-4 are letters written by the plaintiff to the first defendant firm on 8-9-1969. Ex. A-5 dated 8-9-1969 js a letter from the first defendant to the plaintiff-bank. Ex. A-6 is the promissory note dated, 24-9-1969 executed by the third defendant in favour of the plai

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