Ningappa Bhavaku Kalkhambkar v. Balu Babaji Kamat (Since Deceased Through His Heirs And Legal Representatives)

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

MJ Jadhav CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 117 OF 2025 WITH INTERIM APPLICATION NO. 1623 OF 2025 Digitally signed by MANGALTAI JAYWANT JADHAV Date:

2025.02.26 17:33:53 +0530 MANGALTAI JAYWANT JADHAV IN SECOND APPEAL NO. 117 OF 2025 Ningappa Bhavaku Kalkhambkar ... Appellant/Applicant vs.

Balu Babaji Kamat (Since Deceased through his heirs and legal representatives) ... Respondent Mr. Pradip Gole for the Appellant/Applicant.

Mr. Prajakt Arjunwadkar for Respondent No.1A CORAM : GAURI GODSE, J.

DATED : 18th FEBRUARY 2025 ORDER:

1.

Heard. This second appeal is admitted on the following substantial questions of law:

(I) When the plaintiff pleaded that there was a mortgage document executed in favour of the defendant, whether the plaintiff would be entitled to seek possession of the suit property without exercising his right of redemption?

(II) In the event the agreement dated 7th May 1970 is accepted as a document of mortgage as pleaded by the plaintiff, whether in the absence of any prayer for redemption of mortgage, the suit simplicitor for possession could have been decreed?

(III) Whether the agreement dated 4th April 1969 can be accepted as an agreement for sale as pleaded by the defendant, and whether based on the said agreement, the defendant would be entitled to seek protection under Section 53A of the Transfer of Property Act?

(IV) Whether for seeking protection under Section 53A of the Transfer of Property Act, the defendant has satisfied all the conditions contemplated under Section 53A of the Transfer of Property Act? INTERIM APPLICATION NO. 1623 OF 2025 2.

Rule on interim relief in terms of prayer (a) is made returnable on 1st July 2025.

3.

Mr. Prajakt Arjunwadkar waives notice for Respondent No.1A. 4.

In addition to Court notice, learned advocate for the applicant

to serve the remaining respondents, by private notice and file affidavit of service before the next date.

5.

During the pendency of the application, there will be adinterim stay in terms of prayer clause (b). 6.

The parties shall not create any third party rights in respect of the suit property during the pendency of this application. 7.

The appellant shall not part with possession of the suit property in favour of any third party during the pendency of the second appeal.

(GAURI GODSE, J.)