( 1 ) THIS Second Appeal is preferred against the judgment and decree dated 24-3-1979 passed by the learned Civil Judge, Bangalore City in R. A. No. 117 of 1977 confirming the decree dated 20-1-1977 passed in O. S. 257 of 1973 by the learned V Additional I Munsiff, Bangalore.

( 2 ) THE appellant is the 3rd defendant. The respondent is the plaintiff - Bank of Baroda. There were two more defendants in the suit viz. , defendants 1 and 2. Defendant No. 1 -H. Malegowda was the principal-debtor and defendant 2 T. B. Subba Rao was one of the sureties.

( 3 ) THE suit was filed on 25-1-1973 for recovery of a sum of Rs. 4, 545-81 (Principal sum being Rs. 3200/-) advanced as a loan to the lst defendant - H. Malegowda on 07-04-l969 under a pronote dated 07-04-1969 and also under a hypothecation deed executed by him on 07-04-1969 hypothecating 3 HP pumpset for which the loan was advanced to defendant No. 1 - H. Malegowda. Defendants 2 and 3 were the guarantors who had executed a guarantee bond on 07-04-1969. As the loan amount was not repaid, the Bank of Baroda - the plaintiff-filed the aforesaid suit seeking a decree in the following terms :" (A) For repayment of the said sum of Rs. 4,545-81; (b) Interest at the rate of 10% per annum from date of suit till date of decree; (c) Court costs; (d) Interest on the aggregate at the rate of 6% per annum from the date of decree till date of realisation; (e) That in default of the defendants to pay the said sum to cause the hypothecated pumpset with its fittings etc. described in the Schedule hereunder to be seized and sold and out of the net sale proceeds thereof, the amount due to plaintiff be adjusted towards the amount due and the deficiency, if any, be recovered from the defendants personally and from their other assets; and (f) For such other and further reliefs as this Hon'ble Court deems fit to grant in the circumstances of this case. "

( 4 ) IN the plaint, the plaintiff has specifically averred thus :"the amount due to the plaintiff is as detailed below : a) Loan amount : rs. 3,200-00 b) Interest from 7-4-1969 to 25-12-1972 as per statement of accounts furnished along with the plaint. Rs. 1,345-81 total rs. 4, 545-81 plaintiff is entitled to recover the said sum with interest at the rate of 10% per annum with quarterly rests from the 1st defendant as the borrower and defendants 2 and 3 as the guarantors and all of them are jointly and severally liable for the repayment of the said sum of Rs. 4,545-81 to the plaintiff. Plaintiff is also entitled to recover the said sum by sale of the hypothecated machinery described in the schedule thereto. Defendants have failed and neglected to repay the said sum in spite of repeated demands including a demand made by the plaintiff's counsel by a registered notice dated 18-10-1972. Hence the suit. "

( 5 ) DEFENDANT 2 did not appear and contest the suit, therefore, he was placed ex parte. Defendant 1 died before he could be served with the suit summons. However, defendant 3 appeared and filed the written statement inter alia contending that the suit has abated as against defendant 1 as he died in the month of February 1973 and that he was not liable for the suit claim. 5. 1. In the light of the defence set up by defendant 3 long after the filing of the written statement, the plaintiff filed an application to bring the legal representatives of the deceased defendant 1 on record. The trial Court rejected the said application by the order dated 9-7-76 and held that the suit had abated against defendant 1. The plaintiff did not challenge by preferring an appeal against the order dated 9-7-1976 passed by the trial court. The said order was appealable under Order 43, Rule 1 (k) of the C. P. Code. The plaintiff has also not preferred an appeal against the decree-passed by the trial Court dismissing the suit against defendant 1.

( 6 ) ON the basis of the pleadings of the parties, the trial Court framed the following issues : (1) Whether the 3rd defendant pr