Bombay High Court
Purushottam Bhagwan Sapkale vs Narayan Trimbak Joshi on 23 August, 2021
Bench: V. V. Kankanwadi
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.174 OF 2018
Purushottam Bhagwan Sapkale = APPELLANT
(orig.Defendant)
VERSUS
Narayan Trimbak Joshi = RESPONDENT
(orig.Plaintiff)
-----
Mr.VB Patil,Advocate for Appellant;
Mr.VJ Dixit, Sr.Counsel, i/b LV Sangit,Advocate for Respondent.
-----
CORAM : SMT.VIBHA KANKANWADI,J.
DATE : 23rd August, 2021.
PER COURT :-
1. Present appeal has been filed by original
defendant, challenging judgment and decree passed
in Regular Civil Appeal No.203/2011 by learned
District Judge-2, Jalgaon on 6.1.2018, thereby
reversing the judgment and decree dated 26.9.2011
in RCS No.10/2005. Present respondent-original
plaintiff had filed the said suit for redemption of
mortgage. The said suit came to be dismissed by
learned 5th Joint Civil Judge, JD, Jalgaon. That
decree was challenged by the original plaintiff in
the said Regular Civil Appeal No.203/2011, which
has been allowed by setting aside the judgment and
decree of the learned Trial Judge. The first
Appellate court has decreed the suit for redemption
of mortgage.
2. Heard learned Advocates appearing for
the respective parties. In order to cut short, it
can be stated that both of them have made
submissions in support of their respective
contentions.
3. At the outset, it is to be noted that the
suit that was filed by the plaintiff was for
redemption of mortgage. It was based on document
dated 26.4.1993, which according to the plaintiff,
was mortgage by conditional sale. However, the
defendant had taken defence that the said document
was sale with a condition to re-purchase and since
the suit was not within limitation and the terms of
the documents were not satisfied, it has been taken
as a pure sale. The learned Trial Judge held that
the document has sale with condition to re-
purchase. It was also held that the suit is not
within limitation and thereby the suit was
dismissed. The same document has been interpreted
by the first Appellate Court as a Deed of Mortgage
by conditional sale and the suit has been held to
be within limitation. Under such circumstance, the
interpretation of document would be substantial
question of law which has been interpreted by both
the Courts differently.
4. Therefore, in view of the decision in the
case of Uma Pandey and Anr. Vs. Munna Pande and
Ors. - (2018) 5 SCC 376, the matter needs
consideration. Substantial questions of law are
arising in this appeal. Hence, the Second Appeal
stands admitted. Following are the substantial
questions of law, -
i. That, when the plaintiff in his
cross-examination has clearly admitted
that there was/is no relation of debtors
and creditor and further, he admitted
that the adjacent land belonged to the
plaintiff had been sold near about equal
price of consideration as of deed below
Exh. 59, therefore, in this terms of
admission, whether the judgment, order
and decree passed by appellate Court is
legal and correct as per provision of
Section 58 (C) of the Transfer of
Property Act ?
ii. Whether the suit was within
limitation ?
iii. Whether the plaintiff was
entitled to get decree as prayed ?
5. Issue notice to respondent. Learned
Advocate Mr. Sangit waives notice for the
respondent.
6. Call R and P.
(SMT. VIBHA KANKANWADI)
JUDGE
BDV
