1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 835 OF 2008 Keraba Govind Dhure and anor........Appellant. versus Ravindra Prabhakar Shewale & anr........ Respondents. Mr. Sangramsingh Yadav for the Appellant Mr. Sameer S. Tambekar for the Respondent. CORAM: A.P. DESHPANDE, J. DATED : 29TH AUGUST, 2008. P.C.: 1. The original Plaintiff/Appellant take an exception to an order passed by the District Judge, Kolhapur dated 20th July 2007 whereby the judgment and decree passed by the trial court has been set aside and the matter has been remanded for denovo trial after framing proper issues in the light of the observations made in the judgment. 2. The Plaintiff claimes to have entered into an agreement with the Defendant and had advanced a loan in the sum of 2 Rs. 65,000/- in consideration thereof, the Defendant executed a mortgage in favour of the Plaintiff. The possession of the suit property came to be handed over to the Plaintiff. A right of redemption obviously vests in the Defendant. The Plaintiff brought the suit by contending that the Defendant has failed to pay the loan amount and thus prayed for a decree against the Defendant seeking execution of the sale deed of the property in question. The trial court decreed the suit and directed the Defendant to execute the sale deed. Agreieved by the judgment and decree, the first appeal was carried by the defendant before the District Court. The District Judge noticed that the relevant issues despite proper pleadings were not framed by the trial court, the issues which ought to have been framed includes the issues of non-joinder of necessary party and about the maintainability of the suit. Besides the legal infirmities noticed by the first appellate court, it is also relevant to note that no issue touching legal necessity has been framed. Cryptic observations in that regard are to be found in the concluding part of paragraph 9 of the trial court judgment, wherein it is observed that “Defendant might have in need of money”. 3. Perusal of the judgment and decree passed by the trial court clearly reveals total non-application of mind and failure to frame and deal with the issues that arises on the basis of 3 pleadings of the parties. The view taken by the first appellate court that the matter needs a denovo trial and a fresh decision on merit is a sustainable view. In the result, there being no merit in the appeal, the same stands dismissed in limine. The trial court is directed to proceed with the trial of the suit in light of the observations made in this order, so also the order passed by the First Appellate Court. In view of the dismissal of the Appeal, Civil Application does not survive and the same is also disposed of. (A.P. DESHPANDE, J.)