BABU GULAL PATIL Vs. NAMDEO LAXMAN CHAUDHARI

JUDGEMENT

(1.) Appellant/Original plaintiff is challenging the judgment and decree passed by the Ad-hoc Additional District Judge, Nandurbar on 16-1-2003 in Regular Civil Appeal No.36/2000. The appellate court while allowing the appeal remitted the matter back to the Civil Judge, Sr.Dn., Nandurbar with a direction to accept the counter claim presented by defendant and also to permit him to deposit requisite court fees. The Civil Judge, Sr. Dn., Nandurbar was further directed to permit the plaintiff to file his written statement to the counter claim presented by the defendant. On consideration of the case put up by the respective parties, the trial court was directed to dispose of the suit in accordance with the provisions of law, within six months from the date of the judgment.

(2.) Appellant/Original plaintiff instituted Regular Civil Suit No.71/1994 which was heard and disposed of by the II, Jt. Civil Judge, Jr. Dn., Nandurbar. Plaintiff claimed a decree of redemption of mortgage against the defendant and also sought direction that he be put in possession of the suit property. Dispute relates to land survey no.58 admeasuring 5 H and 17 R situate at village Waghode, Tq. Nandurbar. According to plaintiff, mortgage transaction was entered into with defendant on 17-6-1980. Plaintiff is the mortgagee whereas defendant is mortgagor. Mortgage amount was to the tune of Rs.15,000/-. It was agreed between the parties that on payment of aforesaid amount within a period of five years, the plaintiff would be put in possession of the suit property. Possession of the disputed property was handed over on the date of execution of the mortgage deed i.e. 7-6-1980. Thus, according to the plaintiff, the transaction is mortgage by conditional sale. It is further contended by plaintiff that he requested the defendant to accept an amount of Rs.15,000/- for releasing the property, however, defendant refused to do so. As such, plaintiff was constrained to file the suit.

(3.) Substantial questions of law those arise for consideration in this appeal 1. Whether it was open for the first appellate court to allow the appeal and remit the same back to the trial court with a further direction to consider the counter claim raised by the defendant, in the absence of there being any challenge by the defendant to the order passed by the trial court rejecting the counter claim presented by the defendant, during the pendency of the appeal 2. Whether the first appellate court was justified in invoking the provisions of section 105 of the Code of Civil Procedure and take recourse to Order 41, Rule 2 of the Code of Civil Procedure for issuing direction for setting aside the decree passed by the trial court and for issuing direction to the trial court, on remand of the matter to consider the counter claim raised by the defendant