1 IN THE HIGH COUT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 239 OF 2008 WITH CIVIL APPLICATION NO. 920 OF 2007 Ashok Nivrutti Chakor & anr...... Appellants Vs. Smt. Yamunabai G. Gosavi .... Respondent Mr. R.R. Mahagaonkar Adv. For the appellants Mr. Suresh M. Sabrad Adv. For the respondent. CORAM : R.G. KETKAR, J. DATE : 6th July, 2010. P.C. : 1. Heard Mr. Mahagaonkar, learned counsel for the appellants and Mr. Sabrad, learned counsel for the respondent. 2. This appeal is preferred by the original plaintiff challenging the judgment and decree dated 26-2-2007 passed by the Ad hoc District Judge-1, Nashik in Regular Civil Appeal No. 2/03 arising out of the judgment and decree dated 29-11-2002 passed by the Joint Civil Judge, Junior Division, Niphad in R.C.S. No.217/1993. By the impugned judgment, the learned District Judge allowed the appeal preferred by the respondent/original defendant and dismissed the suit instituted by the 2 appellants. The facts giving raise to this appeal are as follows: 3. The appellants instituted R.C.S. No.217/1993 for specific performance of contract dated 26-8-1986. It is the case of the appellants that in order to meet family needs, they were in need of Rs.12,000/-. The appellants approached the respondent and the conditional sale deed was executed on 26-8-1986 in respect of land Gat no. 114 area 0.63 Are for Rs. 12,000/- and it was to be reconveyed after seven years and before ten years. They issued notice on 18-8-1993 calling upon respondent to reconvey the said land. The appellants were and are ready and willing to pay the amount. Since the respondent did not respond to the said notice, the present suit was instituted. 4. The respondent filed written statement and contended that the suit land was agreed to be sold for consideration of Rs.12,000/- by way of conditional sale deed. The respondent was put in possession and the appellants were to pay Rs. 12,000/- after seven years and before ten years . 5. The learned trial Judge, on the basis of rival contentions framed the necessary issues. Parties led oral and documentary evidence on 3 record. On the basis of the material on record, the learned trial Judge decreed the suit. The respondent herein preferred an appeal and by the impugned judgment and decree, the appeal was allowed. It is against this judgment and decree, the original plaintiffs have preferred present appeal. 6. Mr. Mahagaonkar submitted that the learned District Judge has committed serious error in holding that the document dated 26-8-1986 at Exh.17 is a mortgage by conditional sale. He further submitted that the land was to be reconveyed after seven years and before ten years on payment of Rs. 12,000/-. Accordingly, the appellants called upon the respondent to reconvey the propert. Since there was no response, they were, compelled to file suit. The learned trial Judge rightly decreed the suit. However the learned District Judge allowed the appeal on the ground that the document in question is a mortgage by conditional sale and the appellants did not pray for the redemption of the property. On the other hand Mr. Sabrad supported the impugned judgment and decree. 7. After hearing the learned counsel appearing for the parties and considering the material on record, it is evident that the document in 4 question is a mortgage by conditional sale. Sec. 58(c) of Transfer of Property Act, 1882 reads as under: “ 58(c) : Mortgage by conditional sale :- Where the mortgagor ostensibly sells the mortgaged property- On condition that on default of payment of the mortgage-money on a certain date the sale shall become absolute, or on condition that on such payment being made the sale shall become void, or on condition that on such payment being made the buyer shall transfer the property to the seller, the transaction is called mortgage by conditional sale and the mortgagee, a mortgagee by conditional sale: (Provided that no such transaction shall be deemed to be a mortgage, unless the condition is embodied in the document which effects or purports to effect the sale)”. Perusal of the prayers in the suit indicates that the appellant did not apply for the redemption of mortgage and proceeded to treat the 5 document in question as conditional sale and prayed for specific performance. In my opinion the learned District Judge has rightly considered the document in question as a mortgage by conditional sale and accordingly allowed the appeal. No substantial question of law is involved in this appeal. 8. Mr. Mahagaonkar submits that respondents appeal was allowed on the ground that the appellants did not pray for redemption of mortgage. He therefore prays that appellants may be given liberty to institute fresh suit for redemption of mortgage. Mr. Sabrad opposes granting of such liberty. Having heard learned Counsel for the parties and considering the nature of controversy between the parties, liberty is granted to the appellant to institute fresh suit for redemption of mortgage, if so advised. It is made clear that respondent would be entitled to raise all objections available to him as and when such suit is filed. The concerned court will decide the suit on its own merits and in accordance with law. 9. Subject to the aforesaid liberty, second appeal is dismissed with no order as to costs. In view of the dismissal of the Second Appeal, no 6 orders in the Civil Application are necessary and the same is also dismissed. [R.G. KETKAR, J.]