J.B. Pardiwala, J.

This second appeal under section 100 of the CPC is at the instance of the original defendant No.2 and is directed against the judgment and order dated 11th December, 2017 passed by the Principal District Judge, Mehsana in the Regular Civil Appeal No.90 of 2005 arising from the judgment and decree passed by the Civil Judge (S.D.), Mehsana dated 16th March, 2000 in the Special Summary Suit No.3 of 1999.

2. For the sake of convenience, the appellant herein shall be referred to as the original defendant No.2, the respondent No.1 shall be referred to as the original plaintiff and the respondent No.2 shall be referred to as the original defendant No.1.

3. The case of the defendant No.2, in his own words, as pleaded in the memo of the second appeal, is as under;

"2.1 The appellant states that the appellant is the resident of Visnagar. The opponent No.1 is the partnership firm which is based at Visnagar. The respondent no.2 used to live at Visnagar.

2.2 The respondent no.2 had borrowed the amount from respondent no.1, which was not paid by the respondent no.1. The cheques issued by the respondent no.1 to the respondent no.2 were dishonoured. The respondent no.1 had borrowed the amount of Rs. 30,000/- on 11.01.1996, for which, the discount voucher was issued by the firm.

2.3 As per the plaint, the agreement was executed between the respondents no.1 and 2, wherein the respondent no.2 was allowed to withdraw the amount upto Rs. 1 lac with the rate of interest of 25%. The said agreement was purportedly executed on 17.03.1997.

2.4 The appellant is shown as the guarantor of the said amount, which was borrowed by the respondent no.2, which is denied by the appellant.

2.5 The respondent no.2 had also withdrawn the amount of Rs. 55,000/- on 17.03.1997. The said amounts were paid by the respondent no.2 by issuing cheque drawn on the Visnagar Nagrik Sahkari Bank Ltd. Visnagar by cheque no.278797 dated 05.06.1998 for Rs. 30,000/- and cheque no.283605 dated 05.06.1998 for Rs. 55,000/-

2.6 The respondent firm had issued the demand notice to the respondent no.1 since the cheques were dishonoured, however, the respondent no.2 did not pay the said amount, which constrained the respondent no.1 to institute the Summary Suit against the respondent no.2. The suit was instituted for the amount of Rs. 1,15,095/- before the learned Civil Judge (SD), Mehsasna under the provisions of Order XXXVII of the Code of Civil Procedure, 1908.

2.7 The appellant states that the Civil Suit was heard by the learned Judge without affording an opportunity to the appellant to grant leave to defend. There were many grounds raised by the appellant raising the issue of maintainability of the Suit, which were not decided. The learned Judge had passed the judgment and decree on 16.04.2000, wherein the defendants were ordered to pay Rs. 1,15,097/- with the running interest of 21% from the date of judgment till realization of the decreetal amount.

2.8 The appellant states that the respondent no.2 even being the principal debtor, did not challenge the said judgment dated 16.03.2000. The appellant challenged the said judgment and decree before the Hon'ble Court by way of filing First Appeal No.2916 of 2000. The order was passed in the First Appeal on 25.07.2005, wherein the suit was transferred to the District Court, Mehsana pursuant to the enactment of Gujarat Civil Courts Act, 2005 and for the reason that the claim in the suit was less than Rs. 5 lacs.

2.9 The Suit was transferred to the learned Principal District Judge, Mehsana, wherein it was numbered as Regular Civil Appeal No.90 of 2005. The appeal was heard and decided by the learned Principal District Judge, Mehsana on 11.12.2017, wherein the learned Principal District Judge was pleased to confirm the judgment and decree passed by the learned Civil Judge (JD), Mehsana on 16.06.2000."

4. Thus, it appears from