1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL JURISDICTION SECOND APPEAL NO.120 OF 2008 WITH CIVIL APPLICATION NO.893 OF 2008 Ramnath P. Ghotekar Since deceased through his legal heirs 1(a) Sopan R. Ghotekar & Ors. ...Appellants. v. Bhanudas P. Ghotekar & Ors. ...Respondents. Mr. Sachin Gite i/by M.S.Karnik, advs. For the Appellants. Mr. Anilkumar Patil, adv. For the Respondent No.1. CORAM : J.H. BHATIA, J. DATED : 15th October , 2009 P.C. 1 Heard the learned counsel for the Parties. 2 Admitted facts are that plaintiff/respondents had taken loan of Rs.6,000/- from the defendant/appellant and had mortgaged the suit land in favour of the defendant/appellant under the registered deed dated 17th December, 1981. As per the contents of the document, plaintiffs were to repay the amount of Rs.6,000/- within four years and to redeem the mortgage. Registered deed was titled as conditional sale deed with the above referred terms. Plaintiff filed Regular Civil Suit No.127/97 on 11.8.1997 for redemption of mortgage, reconveyance and for possession of the land. According to him, he had already paid Rs.3,000/- and only 2 amount of Rs.3,000/- was to be paid. He also sought mesne profits. Defendant contested suit and according to him, it was absolute sale but the concession was given to the plaintiff to re-purchase by making repayment of the amount within four years. As he was keeping silent for about 16 years, he is not entitled to re-conveyance and the suit is liable to be dismissed. The trial Court dismissed the suit holding that the plaintiff had failed to prove that it was a mortgage by way of conditional sale deed. The plaintiff preferred Regular Civil Appeal No.55/02 before the District Court at Niphad, District: Nashik. The learned District Judge allowed the appeal holding that it was a mortgage by way of conditional sale deed and the plaintiff is entitled to redemption of mortgage. Suit was also found to be within limitation. Accordingly, District Court set aside the judgment passed by the trial Court and declared that the plaintiff is entitled to redemption of mortgage by repayment of Rs. 6,000/-. That amount was already deposited before the trial Court on 2.2.2002. The appellate Court directed defendant to return all the documents of mortgage and also to execute re-conveyance deed. He further directed to hold enquiry under Order 20 Rule 12 of the C.P.C. for mesne profits from 17.12.1985 onwards. Being aggrieved by the said decree passed by the First Appellate Court , legal heirs of the defendant 3 have preferred the second appeal. 3 On perusal of the document and its contents , it is clear that the plaintiff had taken loan of Rs.6,000/- and had mortgaged land with the defendant under the registered deed dated 17th December, 1981. The document itself shows that on repayment of amount within four years, plaintiff was entitled to redeem the mortgage. Though the document is termed as conditional sale deed, from the contents of the document, there remains no doubt that it was mortgage with conditional sale. Plaintiff could redeem the mortgage after the expiry of four years as per terms of contract. Under the provisions of Article 61, period of limitation for suit filed by the mortgagor to redeem or to recover possession of mortgage immovable property is 30 years and the period begins to run when the right of redemption or to recover accrues. Suit was filed in 1997 and, therefore, it was within limitation. Taking into consideration the nature of the document and the agreement between the parties, no fault can be found with the findings of the First Appellate Court and to that extent no question of law is involved in the present appeal. 4 The suit was filed for redemption of mortgage in 1997 and as per the record, amount of Rs.6,000/- was deposited by the plaintiff 4 with the trial Court on 2.2.2002. As per the contents of the documents, no interest was payable on the mortgage money and the defendant was entitled to use the land as long as the money was not repaid. In spite of this, the First Appellate Court directed determination of mesne profits from 17.12.1985, i.e., immediately after expiry of 4 years from the date of conditional sale deed. The First Appellate Court did not consider that the plaintiff had sought the redemption of mortgage in 1997 and not in 1985 and he had not repaid the amount till 2.2.2002. In view of these facts and circumstances, the learned counsel for the plaintiff/respondent concedes that direction about mesne profits needs to be modified. 5 For the aforesaid reasons, the order passed by the First Appellate Court in respect of mesne profits stands modified as follows: 6 Enquiry shall be held under Order 20 Rule 12 of the C.P.C. for determination of the mesne profits from 2.2.02 shall be held till the possession of the land is given back to the plaintiff. With the aforesaid modification, appeal stands dismissed. 7 As the appeal itself is dismissed Civil Application No. 893/08 for stay does not survive and stands disposed off accordingly. (J.H. BHATIA,J.)