1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.126 OF 2009 Shivaji Laxman Mangale. ..Appellant. Vs. Madhukar Madhav Kalyankar. ..Respondent. Mr. Omkar Kadam i/by N.Y.Chavan for the Appellant. Mr.Anilkumar Patil for the Respondent. CORAM :R.S.MOHITE, J. DATE : 15th January, 2010 P.C. 1 Heard both sides. 2 This is an appeal filed by the original defendants impugning two concurrent judgments and decrees passed by the two lower courts. The two lower courts have decreed the plaintiff s suit for redemption of the mortgage dated 3.8.1995. Both the courts have held that this was a mortgage and not a conditional sale. It is contended that the finding of both the courts is reversable in so far as they have not taken into account the judgment of the Apex Court in the case of Tamboli Ramanlal 2 Motilal (dead) by L.R.s Vs. Ghanchi Chimanlal Keshavlal (dead) by L.Rs. And another reported in A.I.R. 1992 S.C. 1236. On perusal of the said judgment, I find that the facts in the present case are different. In the case before the Apex Court, the document was styled as conditional sale. There was a clause in the document for redemption of land by making payment and no clause relating to fore- closure. In the present case, the document is styled as mortgage in the nature of conditional sale. There is no clause for redemption of mortgage by payment of forwarded amount. In the circumstances, there is no substance in the point as raised. 2 The second point raised is that though the trial court had not granted mesne profits, the Appellate Court granted the mesne profits and directed enquiry. Advocate for the respondent states on instructions that his client has instructed him not to press for mesne profits. By 3 concession of the respondent-original plaintiff, though the second appeal is dismissed, impugned decree is modified to the extent that there will no decree for mesne profits and copnsequently no enquiry for determining the mesne profits. Appeal is therefore, disposed off subject to aforesaid modification. Fresh decree to be prepared accordingly. (R.S.MOHITE, J.)