Chandrakantaraj Urs, J. - This appeal by Syndicate Bank, Bangalore, is directed against the judgment and decree of Prl Civil Judge, Bangalore City (as it then was) made in O.S. No. 150 of 1968 on his file.

The appellant Bank was the plaintiff in the suit. Suit was for a decree against the respondents in the sum of Rs. 1,15,210/- and for sale of the mortgaged suit schedule property of the defendants in the even of the defendants not depositing the amount decreed within the time specified, The suit came to be decreed only as against defendant-1, but it came to be dismissed as against defendants 2 to 9. Defendant-1 has been directed to pay the decretal amount within 3 months from the date of the decree failing which only the share of defendant-1 in the suit schedule mortgaged property is directed to be brought to sale to realise the amount. Aggrieved by the said judgment and decree in regard to failure to get a decree against all the defendants, the plaintiff Bank has preferred this appeal.

Originally the appeal was filed only making defendants 2 to 9 as respondents. Subsequently defendant I made an application to implead himself in this proceedings and he was permitted to implead himself as respondent 9 in this proceeding.

In this appeal we will refer to the parties by the ranks they held in the Court below.

The brief facts leading to the suit are as follows :-

It was averred by the plaintiff Bank that defendants 1 to 9 wrote a letter dated March 25, 1964 by which they asked for a Bank guarantee in a sum of Rs. 50,000/- to be given to the Government Soap Factory on behalf of the 1st defendant for the performance of his obligations under the terms of an Agency Agreement entered into by him with the Government Soap Factory in regard to sale of the products of the Soap Factory within the area allotted to the first defendant in the agency agreement. In order to secure the repayment of the liability a thereunder defendants 2 to 9 authorised the first defendant by the powers of attorney given by them to execute all the loan papers such as on Demand Promissory Note, Deposit of Title Deeds pertaining to the properties belonging to all the defendants jointly with intent to create an equitable mortgage in favour of the plaintiff Bank and to do all necessary things for and on their behalf also. Pursuant to that defendant-1 deposited the title deeds described in Schedule 'A' to the plaint with the plaintiff Bank and secured the Bank guarantee. Defendant-1 also offered the title deeds creating mortgage utilising the loan facility of discounting bills a limit of Rs. 1,50,000/- and in that behalfs continuity letter dated February 11, 195" was she given. The Bank guarantee was enforced against the plaintiff Bank whereupon the Bank was required to pay a sum of Rs. 43,592-46 on March 8, 1967. In the result the on Demand Promissory Note which had already been executed for Rs. 50,000/- was converted issue an operative negotiable instrument with effects from the date of such payment and because enforceable against all defendants jointly and severally. In all 14 documentary bills discounted between December 26, 1966 and January 4, 1967 for an aggregate sum of Rs. 54,108.31 remained unrealised in spite of repeated reminders to the parties concerned. In this circumstance, a total sum of Rs. 1,15,210 was liable to be paid on the security of this mortgaged property by the defendants and is the defendants failed to pay the same the plaintiff filed the suit for recovery of the same.

Defendant-1 resisted the suit claims as the basis that there was is the plaintiff in that behalf. He also disputes his liability to pay no enforcement of this Bank guarantee and there was no payment any amount to the Bank as the second loan discounting bill on the ground that the Bank statements were inaccurate that the discounting bills, in fact, have been realised by the plaintiff and as such there as no liability to pay. However, in his write statement he asserted t