The appellate court may consider subsequent settlements between parties impacting the enforceability of a judgment, allowing discretion in rendering justice under Section 107(2) of the CPC.

JUDGMENT :

A.C.BEHERA, J.

This is an appeal under Section 96 read with Order-41, Rule-1 of the C.P.C., 1908, which has been preferred by the appellant against the judgment and decree passed on dated 05.02.2005 and 21.02.2005 respectively in TMS No.153 of 2001 by the learned Additional District Judge(I), Dehenkanal, wherein the suit vide TMS No.153 of 2001 was decreed preliminarily on contest.

2. The respondent no.1-Bank in this appeal was the sole plaintiff and the appellant along with respondent nos.2 to 4 were the defendants before the trial court in the suit vide TMS No.153 of 2001.

3. The suit vide TMS No.153 of 2001 was filed by the plaintiff- Bank(respondent no.1 in this appeal) against the defendants (appellant and respondent nos.2 to 4 in this appeal) was a suit for realization money.

As per the pleadings of the plaintiff-Bank(respondent no.1 in this appeal), the appellant(defendant no.1) was the loanee and the respondent nos.2 to 4 (defendant nos.2 to 4 in this appeal) were the guarantors for the loan amount of the defendant no.1 before the plaintiff-Bank. The defendant no.1 had availed a loan for Rs.2,61,500/- from the plaintiff- Bank on dated 03.12.1991 by executing necessary documents, i.e., deed of hypothecation, deed of guarantee along with other documents and for the said loan of the defendant no.1, the defendant nos.2 to 4 had stood as guarantors accepting all the terms and conditions of the documents executed by the defendants with the plaintiff-Bank about the modes and manner of the repayment of the same with contractual interests thereon, but, after availing such loan from the plaintiff-Bank, the defendant no.1(loanee) defaulted in its repayment of the same in spite of acknowledging the loan outstanding dues against him through execution of revival letters. Accordingly, a sum of Rs.6,89,698/- of the plaintiff- Bank remained outstanding against the defendant no.1-loanee. When, the defendant no.1-loanee did not take any interest for repayment of the same, then, the plaintiff-Bank issued notices to the defendants requesting them for repayment of the same, but, in spite of receiving such notices of the plaintiff-Bank, the defendants did not take any step for the repayment of the same, for which, without getting any way, the plaintiff-Bank approached the civil court by filing the suit vide TMS No.153 of 2001 against the defendants praying for passing a preliminary decree under Order-34, Rule-4 of the C.P.C. for realization of Rs.6,89,698/- from the defendants making them (defendants) jointly and severally liable for the same with pendentelite and future interest thereon on contractual rate for a direction to the defendants to clear the same within the stipulated period as the court deems feet and proper.

4. Having been noticed from the trial court in the suit vide TMS No.153 of 2001, the defendant nos.2 and 3 were set ex parte without making their appearance, but, whereas, the defendant nos.1 and 4 contested the same by filing their joint written statement taking their stands therein that, the suit of the plaintiff-Bank is barred by time. The suit is bad for non-joinder of necessary parties. They(defendant nos.1 and 4) denied the rate of interest claimed by the plaintiff-Bank along with mode and manner of repayment of loan stated by the plaintiff-Bank in its plaint. They(defendant nos.1 and 4) also denied the execution of any document by them before the plaintiff-Bank for availing any loan from the plaintiff-Bank. They (defendant nos.1 and 4) totally denied about the disbursement of any loan including the so-called loan in favour of the defendant no.1 as stated by the plaintiff-Bank in its plaint. They (defendant nos.1 and 4) specifically stated that, they have not executed any