Hon’ble Prakash Krishna, J.—This is defendants’ appeal against judgment and decree dated 28th April, 1998 passed by Sri J.P. Pandey, Civil Judge (Senior Division), Muzaffarnagar in O.S. No. 143 of 1995, decreeing the suit, declaring that the amount recovered by the defendants from the plaintiff towards the arrears of licence fee without adjusting the damages suffered by the plaintiff is illegal. A decree for mandatory injunction directing the defendants to adjust Rs. 10,01,520/- first towards the damages suffered by the plaintiff was passed. Further, the amount recovered as pendente lite may also be adjusted and final accounting be done. It has also been provided that if any excess amount is found due to the plaintiff, it shall carry six per cent interest.

2. Ram Kishan, the plaintiff, an excise licensee under the U.P. Excise Act, instituted the aforesaid suit on the allegations that he in the auction dated 26th April, 1977 took four liquor shops for the excise year 1977-1978 held at Muzaffarnagar for a sum of Rs. 34 lakhs for the period 27.4.1977 to 31st March, 1978. Under the licence he was entitled to open shops from 10:00 a.m. to 10:00 p.m. By a gazette notification dat