B.K. Sarma, J.

1. This appeal is directed against the judgment and decree dated 6.8.2004 passed by the learned Civil Judge (Senior Division) No. 1, Guwahati in Money Suit No. 48/98, partially decreeing the suit in favour of the plaintiff respondent declaring that the plaintiff/respondent is entitled to Rs. 12,45,816/- payable by the defendants/appellants No. 1 to 4 jointly or severally with interest at the rate of 9% per annum from 1.4.1995 till realization of the amount within 60 days.

2. The sole respondent as the plaintiff instituted money suit No. 48/98 valued at Rs. 35,13,556.64P against the present four appellants as the defendants and also against the defendant No. 5 by name who was the defendant No. 4 in his official capacity. The learned trial Court has held that the suit against the said defendant No. 5 is not maintainable in view of the fact that he was already a party defendant (defendant No. 4) in his official capacity.

3. The matter relates to execution of the particular work entrusted to the plaintiff/respondent by the defendants-appellants pursuant to floating of tender and the entitlement of the plaintiff-respondent to the amount it had claimed in the suit for