DR. RAVI RANJAN, J.:–The plaintiff-appellant has preferred the present appeal against the judgment and decree dated 19.9.1977 passed by the 3rd Additional Sub-Judge, Purnea in Money Suit No. 17 of 1976 / 15 of 1977.

2. The plaintiff has filed the suit for a decree of Rs.13062.05/- against the defendants and also for interest on that amount till its realization. A relief for attachment of hypothecated property has also been sought.

3. Plaintiff’s case in brief is that the father of defendant no.1 was carrying on the business of plying taxi on permit till his death and defendant no.2 is the sole proprietor of his firm carrying out business in the name and style of ‘Shankar Stores’ in Forbesganj Town. Further case of the plaintiff is that father of defendant no.1 had applied for a loan advance to the plaintiff which had sanctioned an advance limit of Rs.16394.35/- in instalment credit loan to the father of defendant no.1 on the security of hypothecation of the taxi of the father of defendant no.1. The father of defendant no.1 had executed the agreement and defendant no.2 had guaranteed the repayment. On 28.11.1970, the father of defendant no.1 withdrew the aforesaid amount of Rs.16394.35/-. He paid Rs.4095/- upto 11.1.1972 as instalment at the rate of Rs.455/- and thereafter failed to pay the agreed instalments. In the meantime, he died leaving behind his son, the defendant no.1, as his only heir. On demand by the plaintiff, the amount was not returned back by the defendants. Plaintiff’s case is that the liability of the guarantor (defendant no.2) is of equal footing and co-extensive with that of defendant no.1, who is also liable to pay the entire claim.

4. Defendant no. 1 did not appear in the suit despite service of notice. However, defendant no.2, the guarantor, had appeared and filed written statement taking a stand that after the death of the original loanee, leaving behind defendant no.1 as the sole heir, he is no way liable for payment of the claim of the plaintiff.

5. Upon pleading of the parties, following issues were framed by the trial court.

(i) Whether the Suit as framed maintainable?

(ii) Whether the plaintiff has cause of action or right to sue?

(iii) Whether the plaintiff is entitled to a decree as claimed for?

(iv) To what other relief or reliefs if any the plaintiff is entitled?

6. The trial court has dismissed the suit on the ground that plaintiff has failed to file any document or examine any material witness in support of his case as P.Ws. 1, 2, 3 and 4 were formal witnesses and have not said even a word on merit of the case. The relevant finding of the trial court is quoted as under :

“8. The plaintiff has neither filed and proved any document nor has examined any witnesses to support his case. P.W. 1,2,3 and 4 are formal witnesses and have not said even a word on merit of the case. Thus plaintiff has totally failed to prove his case. Hence all the above issues are decided against the plaintiff.”

7. I have heard the appellant. No one had appeared on behalf of the respondents at the time of hearing of the case.

8. The sole question raised by the appellant in this appeal is as to whether in view of the fact that only formal witnesses have been examined as no material witnesses could be examined by the plaintiff and on the date fixed further witnesses could not be produced for examination, whether the trial court should have proceeded to decide the suit under Order XVII Rule 3 of the Code of Civil Procedure (hereinafter refereed to as the “Code”) or it should have proceeded under Order XVII Rule 2 of the Code.

9. Learned counsel for the plaintiff –appellant submitted that it is apparent from the record that when the case was called out on 19.09.1977, an application was pressed by learned counsel for the plaintiff for adjournment. However, the same was rejected and the plaintiff was directed to proceed further for hearing of the case. The plaintiff could not do that. Thus, the plaintiff’s case was closed and defendant was d

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