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2001 DIGILAW 368 (SC)

Sankaran Bhaskaran v. Kumaran Sarasamma

2001-02-14

A.P.MISRA, S.N.VARIAVA

body2001
JUDGMENT : 1. I.A. Nos. 7, 8 and 9 and 11 are allowed. 2. Heard learned counsel for the parties. 3. The present appeal by the plaintiff is directed as against the order of the High Court in second appeal reversing the concurrent findings of the Subordinate Court by dismissing the suit for redemption and partition. 4. The short facts are that the property in dispute belong admittedly to one Palpan Kumaran who executed a settlement deed on 7th May, 1923 by which he conveyed his right over the property reserving life estate in himself and right to encumber the properties for Rs. 3,000/-. There seems earlier, various suits were filed which is not necessary to be adverted to for the disposal of this appeal. The present suit was filed by the appellant for redemption of the properties on payment of Rs. 3,000/- under the mortgage deed executed in the year 1946. The trial court decreed the appellant's suit and rejected the case of the respondents which was confirmed by the Appellate Court. The High Court, in second appeal, has set aside the findings of both the courts below and allowed the second appeal by dismissing the appellant's suit as barred by time. 5. We have heard learned counsel for the parties. We find the High Court in second appeal has set aside concurrent findings of both the courts below without framing any substantial question of law and deciding on such question. This Court has been declaring repeatedly that after the amendment of Section 100 Civil Procedure Code, it is obligatory for the High Court, while disposing of the second appeal, to frame substantial question of law, if any, and then to decide on the same. Since in the present case this has not been done, the impugned order is unsustainable. Accordingly, for the said reason, we set aside the impugned order of the High Court dated 8th October, 1990 and remand the case back to it for deciding afresh. The High Court shall first examine, whether any substantial question of law arises, if so, to frame the same and decide it in accordance with law after giving opportunity to the parties. 6. With the said observations, the present appeal is allowed. Costs on the parties.