Heard.

2. ADMIT.

3. Taken up for final hearing.

4. The original defendant No. 2 has filed this appeal under Order 43, Rule 1 of the Code of Civil Procedure to challenge the judgment passed by the learned District Judge by which the appeal filed by the respondent No. 1/original plaintiff under section 96 of the Code of Civil Procedure is allowed, the judgment passed by the trial Court on preliminary issue holding that the civil suit filed by the plaintiff is not maintainable, is set aside and the matter is remanded to the trial Court for decision of the civil suit on merits on all other issues.

5. The claim of the appellant bank is :

Shri Kalyanmal Munot was the owner of land Khasra No. 21/1 and Khasra No. 22, admeasuring 3 H 77 R. Out of this land half acre was mortgaged with the appellant bank as security for the loan given to M/s Wardhman Enterprises of which Kalyanmal Munot and Smt. Smeeta Ravindra Munot were partners. According to the bank, the Mortgage Deed was executed on 23rd January, 1991. M/s Wardhman Enterprises failed to repay the loan. Therefore, bank had filed Special Civil Suit No. 569 of 1992 for recovery of its dues. This civil suit was decreed by the judgment