TYAGI, J.—This is a plaintiffs appeal against the judgment and decree passed by the Additional District Judge No. 1, Jodhpur, dated June, 3,1972, and it arises out of the following circumstances—

2. The plaintiff filed a suit for Rs. 10,000/- as principal advanced on pronotes on different dates to the defendant firm Mohan Brothers, Station Road, Jodhpur, and Rs. 1,425/- as interest thereon. The pronotes were admitted by the defendants, but certain legal pleas were raised by the defendants, which I need not mention then here, as the controversy in this appeal is limited only on the question of the interest awarded to the appellant for the period prior to the institution of the suit and also interest pendente lite. During the course of the arguments before the learned Judge it appears that one of the plaintiffs Shri Utsavlal, who is now the sole appellant in this Court, his father Ram Gopal having died during the pendency of the appeal, gave in writing to the learned Judge that he would agree to accept interest @ 12% per annum in place of 15% per annum as mentioned in the pronotes. The learned Judge passed a decree for Rs. 10,455/- (Rs. 10,000/- principal plus Rs. 455/- as interest) and also awarded pendente lite interest @ Rs. 6.00 percent per annum and future interest at the same rate till the money was realised by the appellant. It is alleged that the decretal amount has been paid by the defendant-judgment-debtors to the appellant and, therefore, the only question to be decided in the appeal is whether the interest has been properly awarded by the trial court or not.

3. An attempt was made by Mr. Utsav Lal to raise a controversy on the question whether he had actually given anything in writing to the court below showing his consent to accept interest at the rate of 12% per annum, but during the course of arguments Mr. Utsav Lal agreed that even if no writing was given by him to the trial court expressing his desire to charge the interest @ Rs. 12/- percent per annum, he is now prepared to accept this rate of interest, but his contention is that he could not by his acceptance bind his father Ramgopal, who was also a plaintiff in the suit and, therefore, he, as a successor of his father, can now claim in this appeal that inspite of his agreeing to charge 12% interest the trial court should have passed the decree awarding interest at the stipulated rate of Rs.15/- per cent per annum.

4 It is not disputed that Ram Gopal died during the pendency of the appeal and now Mr. Utsavlal is the sole appellant before the court. All the rights and interest of late plaintiff Ram Gopal have now devolved on the sole surviving appellant Utsavlal, who has agreed before this Court to accept the interest on the principal amount @ Rs. 12 per cent. Since Mr. Utsavlal has agreed before this Court to charge interest @ Rs.12 per cent, it is not open to him to advance an argument that a different rate of interest must be allowed on that part of the principal amount that fell to the share of his late father Ramgopal. Since the court is not required to adjudicate the rights of Ramgopal and Utsavlal separately with regard to the loan it is difficult for me to award different rate of interest on the sum advanced to the defendant jointly especially when Mr. Utsavlal has agreed before me to charge 12% interest on the sum advanced against the pronote. In this view of the matter the rate of interest allowed by the trial court at 12 per cent per annum, cannot now be changed in this appeal.

5 The another controversy which requires decision is whether the trial court in the exercise of its discretion under sec. 34 of the Code of Civil Procedure could award pendente lite interest at the rate of Rs. 6/- per cent per annum, especially when the loan was advanced by the plaintiffs on the strength of a pronote, which undoubtedly a negotiable instrument. It is not disputed by the learned counsel for the parties that the provisions of the Negotiable Instruments Act shall gove

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