MARIAMBEN D/O. RASULBHAI Vs. CHANDRAKANT RATILAL KALAL

JUDGEMENT

(1.) This second appeal under Sec. 100 of the Code of Civil Procedure, 1908 (for short 'CPC') at the instance of the original defendant challenges the concurrent judgment and decree passed by the learned Courts below whereby in suit filed by the plaintiff being Regular Civil Suit No.223 of 1983 decree was granted for the prayer of the redemption of the mortgage and for handing over the possession of the suit property along with the order of mesne profit at Rs.400.00 per month till the possession of the suit property is handed over to the plaintiff. By judgment and decree dtd. 6/4/1995 in Regular Civil Appeal No.17 of 1987, learned Second Additional District Judge, Kheda confirmed and approved the judgment and decree passed by the learned Trial Court.

(2.) Before we note the facts for determining the second appeal, let refer chronicles and narratives placed in this second appeal. This second appeal was admitted on 13/9/1995 by framing substantial question of law. The second appeal was decided on 6/3/2013 (Mr.Justice C.L.Soni as he then was). The coordinate Bench of this Court while partly-allowing the appeal confirmed the decree passed by the Court below for redemption of the mortgage of the suit property but remanded the matter to the first Appellate Court to decide as to whether an execution of the Mortgage Deed, tenancy right of the defendant had stood terminated i.e. to say whether such tenancy right of the defendant wound stand revived on redemption of the mortgage. Special Leave Petition (Civil) No.10309 of 2013 and Special Leave Petition (Civil) No.35133 of 2014, numbered as Civil Appeal No.2022 of 2019 was filed before Hon'ble Supreme Court. The former one was filed by the heirs of Chandrakant Ratilal Kalal (heirs of the plaintiff) and the later one was filed by the appellants herein. In Civil Appeal No.2022 of 2019, the Hon'ble Apex Court quashed and set aside the judgment and order passed by this Court and remanded the matter to be decided afresh on the question of law already framed on 25/2/2019. The SLP filed by the heirs of Chandrakant Ratilal Kalal was also disposed of on 16/8/2013 while permitting the heirs of the Chandrakant Ratilal Kalal to take appropriate steps in the High Court for joining them as heirs.

(3.) Meanwhile, pursuant to the judgment and order passed by this Court dtd. 6/3/2013, the appeal proceedings before the First Appellate Court was restored and Regular Civil Appeal No.17 of 1987 was reheard by the learned Appellate Court i.e. learned 3rd Additional District Judge, Kheda at Nadiad. By judgment and decree dtd. 31/12/2018, the learned First Appellate Court dismissed the appeal and confirmed the judgment and decree passed by the Court below. Being aggrieved and dissatisfied by the judgment and decree dtd. 31/12/2018 passed by the learned 3rd Additional District Judge, Kheda, the original defendant Mariamben preferred Second appeal before this Court being Second Appeal No.287 of 2022. Thus, Second Appeal No.287 of 2022 was dismissed on 10/10/2022 for nonremoval of the office objections.