Case Note & Summary
The judgment pertains to two second appeals arising from the same parties and property. Second Appeal No.477 of 2017 was filed by the original plaintiffs (appellants) challenging the concurrent dismissal of their suit for declaration and permanent injunction. Second Appeal No.775 of 2017 was filed by the original defendants (appellants) challenging the concurrent decree for redemption of mortgage and possession in favor of the respondent. The trial court and first appellate court had concurrently found against the appellants in both suits. The High Court, after hearing the parties, held that no substantial question of law arose in either appeal. The court noted that the findings of fact were concurrent and not perverse, and therefore, interference under Section 100 of the Code of Civil Procedure, 1908 was not warranted. Both appeals were dismissed with no order as to costs.
Headnote
A) Civil Procedure - Second Appeal - Section 100 Code of Civil Procedure, 1908 - Concurrent Findings of Fact - The court held that in a second appeal, interference with concurrent findings of fact is not permissible unless the findings are perverse or based on no evidence. The appeals were dismissed as no substantial question of law arose. (Paras 1-4)
B) Property Law - Redemption of Mortgage - Transfer of Property Act, 1882 - The suit for redemption of mortgage was concurrently decreed in favor of the respondent, and the appellants failed to show any error in the findings. (Paras 3-4)
C) Property Law - Declaration and Permanent Injunction - Specific Relief Act, 1963 - The suit for declaration and permanent injunction was concurrently dismissed, and the appellants could not demonstrate any substantial question of law. (Paras 2-4)
Issue of Consideration
Whether the second appeals involve any substantial question of law warranting interference with concurrent findings of fact.
Final Decision
Both second appeals are dismissed. No order as to costs.
Law Points
- Second appeal under Section 100 CPC
- concurrent findings of fact
- substantial question of law
- redemption of mortgage
- declaration and permanent injunction
Case Details
2019 LawText (BOM) (06) 8
Second Appeal No.477 of 2017 and Second Appeal No.775 of 2017
Smt. Vibha Kankanwadi, J.
Mr. S.S. Jadhavar for the appellants, Mr. A.K. Gawali for the sole respondent
Subhash Limbraj Mahandule (deceased through L.Rs.) and others
Pandharinath Chimaji Salunke
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Nature of Litigation
Civil second appeals arising from suits for declaration and permanent injunction, and for redemption of mortgage and possession.
Remedy Sought
Appellants sought to set aside concurrent judgments and decrees in both suits.
Filing Reason
Appellants challenged the concurrent findings of the trial court and first appellate court.
Previous Decisions
Trial court and first appellate court had concurrently dismissed the suit for declaration and injunction, and decreed the suit for redemption of mortgage.
Issues
Whether the second appeals involve any substantial question of law.
Submissions/Arguments
Appellants argued that the concurrent findings were erroneous and required interference.
Respondent supported the concurrent findings and argued no substantial question of law arose.
Ratio Decidendi
In a second appeal under Section 100 CPC, the court cannot interfere with concurrent findings of fact unless a substantial question of law is involved. The findings were not perverse and no substantial question of law arose.
Judgment Excerpts
Both the appeals are arising between the same parties and in respect of same property, hence, taken up together for adjudication.
Second Appeal No.477 of 2017 is arising out of concurrent Judgment and Decree in Regular Civil Appeal No.68 of 2013...
Second Appeal No.775 of 2017 is filed by original defendants challenging the concurrent Judgment and Decree passed in R.C.A. No.205/2015...
Procedural History
The trial court decided R.C.S. No.323 (declaration and injunction) on 21.02.2012, which was confirmed in R.C.A. No.68/2013 on 06.07.2015. The trial court decided R.C.S. No.199/2012 (redemption of mortgage) on 28.04.2015, which was confirmed in R.C.A. No.205/2015 on 09.03.2016. Both second appeals were filed thereafter and heard together.
Acts & Sections
- Code of Civil Procedure, 1908: Section 100
