The formulation of a substantial question of law is essential for the admission of an appeal, and until such a question is formulated, the appeal cannot be deemed admitted.

( 1 ) DEFENDANTS have filed present appeal challenging the judgments and decrees passed by the Courts below by which suit filed by the respondent No. 1/ plaintiff was decreed for Rs. 15,400/ -.

( 2 ) SHORT facts of the case are that plaintiff entered into an agreement with appellants for transportation of goods from Itarsi railway station to the godowns of appellants. For this purpose respondent no. 1 submitted a guarantee through respondent No. 2 new Bank of India. Contention of the plaintiff was that he has completed the work as per conditions of the agreement and was entitled for refund of bank guarantee and in spite of several requests, appellants have not refunded the guarantee amount. On these grounds suit was filed for recovery of rs. 16,900/ -.

( 3 ) APPELLANTS denied the claim contending that plaintiff has committed breach of the agreement. He has not transported 120 bags of sugar in time to godown of defendant at Pipariya and there was delay in transporting the aforesaid sugar. He has misused stock of sugar resulting loss to the appellants and, in consequence, the bank guarantee was forfeited. Respondent bank contended that it was unnecessarily made party. There is defect of misjoinder of party. Apart from this, as per condition of bank guarantee, plaintiff is not entitled for refund of amount of bank guarantee and plaintiff is under obligation to return the bank guarantee after due discharge from appellants.

( 4 ) LEARNED trial Court framed issues and after recording the evidence, decreed the suit.

( 5 ) IT is pertinent to mention that the valuation of suit in the trial Court was rs. 16. 900/- and it was a money suit for recovery of the amount.

( 6 ) AGGRIEVED by judgment and decree of the trial Court, appellants preferred appeal. Plaintiff also preferred cross objection, but the learned lower appellate Court dismissed both the appeal and cross-objection, and judgment and decree passed by the trial court was affirmed.

( 7 ) THIS appeal was filed on 28-10-1998. On 11-11-1998 this Court issued notice to the respondent and case was directed to be listed for hearing on admission on december, 3, 1998. Thereafter the case was listed for orders on admission and IA No. 7067/ 98 for stay, but the records of the Courts below were not received. On 28-1-1999 service report of respondent No. 2 was awaited, so the case was adjourned. Thereafter the case was listed on 10-2-1999. On that date prayer for stay was rejected and it was directed that appellants will deposit the decretal amount, within a month from that date, respondent No. 1 will withdraw the amount on his furnishing security to the satisfaction of the trial Court. On 31-3-1999 the case was listed for hearing on interim application but the case was adjourned. Thereafter, the case was listed on 3-7-2002 for hearing on admission.

( 8 ) AT the time of hearing, learned counsel appearing for respondent No. 1 raised a preliminary objection that present appeal has not been admitted and in view of amendment in Code of Civil Procedure, in S. 102 of the Code, this appeal is not maintainable as the valuation of this appeal and the suit is less than Rs. 25,000/ -.

( 9 ) LEARNED counsel for the appellants submits that in this appeal this Court has already applied mind and also issued notice to the respondents. In the Code of Civil procedure, there is no provision for issuing notice to the respondent prior to framing substantial question of law and in the circumstances, the order dated 11 -11 -1998 will be deemed to be an order of admission of appeal.

( 10 ) SHRI R. P. Jain, learned counsel present in Court, has also intervened in the case and supported the argument advanced on behalf of appellants. Learned counsel submits that the amendment in Code of Civil procedure was made subsequently to filing of appeal. Right of appellants was available on the date when suit was filed, In the circumstances second appeal filed within time and on the date of filing of appeal, appe