( 1 ) THIS review petition is filed by the appellants/defendants alleging that this Court, while disposing of the Second Appeal, has committed an error especially in considering and construing agreement of re-conveyance, ex. A-3 basing on which the Respondents/ plaintiffs filed the suit for redemption of the mortgage in respect of the suit schedule properly, which is a house property, bearing door No. 20-3-252/1, situated at Androon kaman Hussaini Alam, Opposite Ashoore Khana, Hyderabad. ( 2 ) IT was the case of the Respondents/ plaintiffs that they are the legal heirs of the original plaintiff Shahzad Rehumunnisa begum, who filed the suit for redemption of the mortgage, alleging that she was ready with the money to redeem the mortgage, but however, the original defendant evaded to receive the money and finally refused on 25. 5. 1982. Therefore, the plaintiff filed the suit. Both the trial Court and the Appellate court recorded findings in favour of the plaintiff to the effect that the sale deed Ex. A-1. followed by Ex. A-3 agreement of reconveyance would constitute mortgage and the said mortgage is conditional by sale. Therefore, the suit filed by the plaintiff for redemption as well as for obtaining reconveyance was decreed. The Appellate court also recorded the finding that the sale deed executed under Ex. A-1 followed by a contemporaneous agreement of even date executed by the defendant in favour of the plaintiff would amount to mortgage by conditional sale and therefore upheld the judgment and decree. Even this court also felt that the concurrent findings recorded by the courts below does not call for any interference, and therefore, dismissed the second appeal, with reference to which the present review petition is filed. ( 3 ) AT the time of hearing, the learned counsel for the Review Petitioners contended that the document Ex. A-3 was not properly construed and therefore, an erroneous inference has been drawn by both the courts below, which was accepted by this Court on the premise that the said view being concurrently taken by both the courts below. It is contended by the learned counsel that a proper reading of Ex. A-3 was not properly construed and therefore, an erroneous inference has been drawn by both the courts below, which was accepted by this Court on the premise that the said view being concurrently taken by both the courts below. It is contended by the learned counsel that a proper reading of Ex. A-3 clearly shows that the agreement holder is entitled to get reconveyance by paying the stipulated amount after two years from the date of the said document, but within a period of five years and not at any time after the two years period as was claimed and accepted by the courts below. Further, however, after examining the provisions of Sec. 58-C, the learned counsel for the Review Petitioners was also directed to advance the arguments with reference to the said provision, especially in the light of the proviso to the said provision, which bars an inference to be drawn where the stipulation of re-conveyance was not incorporated in the same document under which sale was effected, but by a separate agreement and such a transaction could not be treated as a mortgage by conditional sale. The learned counsel, therefore, contended that in view of the specific bar as incorporated in the proviso to Sec. 58-C, the present transaction, which is evidenced by two documents, one is a sale deed and another is an agreement of reconveyance, could not be treated as a mortgage by conditional sale. ( 4 ) IN support of his contentions, the learned counsel relied upon the following decisions: abdul Faiz Fakhr v. Abdul Hafeez; sambiah v. Koteswara Ra; K. Simrathmull v. Nanjalingiah Gowder; I. Seetharamaiah v. P. Bangarayya: K. Gopal Rao v. State of a. P. ; N. Subba Reddy v. A. Rangayya; and sunil v. Aghor; ( 5 ) THE learned counsel also contended that even in a case where the Court had not deait with an important issue effectively, the same would amounts to an error apparent on the face of the record, which could be corrected by exercising the power of review and relied upon judgment of this court in K. Gopal Rao v. State of Andhra Pradesh (5 supra ). ( 6 ) THE learned counsel for the respondents/plaintiffs, on the other hand, sought to contend that the present review petition is devoid of merit, since the second appeal was disposed of on merits after considering the material on record including ex. A-3, agreement of sale. Therefore, the view taken by this court cannot be corrected or modified in a review petition, which could be done only in an appeal as the interference with the order would result in re-appreciation of the entire evidence on record. The learned counsel for the respondents relied upon a judgment of the Apex Court in devraiu Pillai v. Sellayya Pillap where the apex Court held that a judgment rendered by a learned single Judge could not be reviewed by another Judge and the review petition before another Judge, who has not rendered the judgment, is not maintainable. ( 7 ) FROM the above rival contentions the issue to be considered in this petition is whether this Court has committed any error while disposing of the second appeal and whether the same warrants review or modification? ( 8 ) AS far as the facts are concerned there is no dispute. However, briefly the facts of the case are one Shahzad Rehumunnisa begum filed the suit against one Muneer ahmad, sole defendant, for redemption of the suit property i. e. , southern portion of the suit house, on the premise that the plaintiff who was the owner of the property executed a sale deed in favour of the defendant at his instance for availing a loan of Rs. 3,000/ -. The defendant agreed to advance the loan to the plaintiff, provided the plaintiff mortgages the suit portion with possession and executes a registered sale deed in his favour. Accordingly, the sale deed was executed by the plaintiff along with one Fakruddin Ahmed khan in favour of the defendant and availed the loan. The said sale deed was executed on 9-6-1970. On the same day, a registered agreement to re-sell was executed by the defendant in favour of the plaintiff stipulating that the plaintiff has to repay the said amount after a period of two years but before the expiry of five years and obtained a reconveyance deed. The said sale deed was executed on 9-6-1970. On the same day, a registered agreement to re-sell was executed by the defendant in favour of the plaintiff stipulating that the plaintiff has to repay the said amount after a period of two years but before the expiry of five years and obtained a reconveyance deed. Alleging that the defendant evaded to receive the amount, the plaintiff got issued a legal notice dated 30-5-1982 alleging that the defendant refused to execute the sale deed after receiving the money on 25. 5. 1982. Basing on the said cause of action, the suit was filed in the year 1982. ( 9 ) THE said suit was resisted by the defendant by filing a written statement. The defendant in the written statement, has stated that the plaintiff approached him for the loan along with one Fakruddin Ahmed Khan in whose favour a sale deed was executed by the plaintiff on 27. 4. 1966. After receiving the amount, the plaintiff along with the said fakruddin Ahmed Khan executed the sale deed and delivered possession of the dilapidated portion of the house, which is an outright sale on 9. 6. 1970. The defendant also admitted that a deed of re-conveyance was executed on the same day on 9. 6. 1970. In the said document, option of repurchase given to the other side would not change the transaction of outright sale in his favour to that of mortgage transaction. It was claimed that the re-conveyance agreement is conditional upon the repayment of the sale consideration, within a period of five years from the date of the agreement, but after two years. Basing on these two documents, the trial Court felt that the transaction is one of sale with contemporaneous agreement to re-convey and therefore, the transaction amounts to one of a mortgage by conditional sale. Therefore, the suit filed for redemption of the mortgage is well within the time and valid, and therefore, decreed the suit, with which the Appellate Court has agreed. In fact, this Court has also agreed with the view taken by the lower courts. Therefore, the suit filed for redemption of the mortgage is well within the time and valid, and therefore, decreed the suit, with which the Appellate Court has agreed. In fact, this Court has also agreed with the view taken by the lower courts. But, however, the said inferential conclusion drawn by the Courts below as well as by this Court is without reference to the provisions of Sec. 58 (c) of the Transfer of Property Act, and its proviso, where there is a specific bar to infer when a transaction of re-conveyance was not incorporated in the same document under which sale was effected. Section 58 (c) and its proviso reads as under: "mortgage by conditional sale: Where the mortgagor ostensibly sells the mortgaged property-on condition that on default of payment of the mortgage money on a certain date the sale shall become absolute, or on condition that on such payment being made the buyer shall transfer the property to the seller, the transaction is called a mortgage by conditional sale; provided that no such transaction shall be deemed to be a mortgage, unless the condition is embodied in the document which effects or purports to effect the sale. " The proviso, which was incorporated by amendment in the year 1929 clearly bars to infer when the stipulation of re-conveyance was not incorporated in the sale deed. In the present case, admittedly, no such stipulation was incorporated in the sale deed Ex. A-1. But the agreement of re-conveyance was evidenced by a separate document, Ex. A-3. Both the Courts below read the two transactions evidenced by two documents as one, and inferred that it is a mortgage transaction, contrary to the specific provisions of Sec. 58-C and its proviso. ( 10 ) THIS view is supported by the judgment of the Apex Court in K. Simrathmull v. Nanjalingiah Gowder (3 supra ). In that case, the plaintiff executed a sale deed in favour of the defendant by borrowing an amount of rs. 1500/- on 18. 2. 1948. On 19. 2. 1948, the plaintiff executed a sale deed conveying to the defendant certain amount land with a house standing thereon for Rs. 700/ -. A rental deed was also executed by the plaintiff in favour of the defendant. 1500/- on 18. 2. 1948. On 19. 2. 1948, the plaintiff executed a sale deed conveying to the defendant certain amount land with a house standing thereon for Rs. 700/ -. A rental deed was also executed by the plaintiff in favour of the defendant. Simultaneously, two other documents were also executed, a deed of re-conveyance by defendant in favour of the plaintiff stipulating that if the plaintiff pays Rs. 1500/- within a period of two years, he will at the cost of the plaintiff executes a sale deed. There is another stipulation that if there is any arrears of rent for a period of more than six months, the counter part agreement shall stand cancelled. Rent accruing due was not paid regularly be the plaintiff and his father, and by April 1949, it was in arrears for seven months. The plaintiff filed the suit on 7-11-1949 for specific performance of the agreement of reconveyance. Both the Trial Court and the appellate court took the view that since the two transactions of sale and re-conveyance are evidenced by two separate documents, and as there is no stipulation incorporated in the sale deed as to the re-conveyance, and further as there is a default on the part of the plaintiff, as to the stipulated terms, the suit was dismissed, and affirmed by the appellate court. However, the High Court in the second appeal allowed the same on the premise that the equitable jurisdiction of the court could properly be exercised in favour of the plaintiff, so as to relieve him against the extinction of his right, which was the subject matter of the appeal before the Apex Court. The Apex court while considering the equitable principles to waive the penalty or penal consequences observed:- "but there is a well recognized exception to this rule which is enunciated in halsburys laws of England, as follows: where under a contract, conveyance, or will a beneficial right is to arise upon the performance by the beneficiary of some act in a stated manner, or at a stated time, the act must be performed accordingly in order to obtain the enjoyment of the rightandin the absence of fraud, accident or surprise, equity will not relieve against a breach of the terms. the Court also referred to the observations of the Federal Court in Shamugam Pillai v. Annalakshmi Ammal, where it was held by a majority of three to two that where under an agreement an option to a vendor is reserved for repurchasing the property sold by him the option is in the nature of a concession or privilege and may be exercised on strict fulfillment of the conditions on the fulfillment of which it is made exercisable. If the original vendor fails to act punctually according to the terms of the contract, the right to repurchase will be lost and cannot be specifically enforced. Refusal to enforce the terms specifically for failure to abide by the conditions does not amount to enforcement of a penalty and the court has no power to afford relief against the forfeiture arising as a result of breach of such a condition. The apex Court further observed, we accept the view of the majority enunciated in shanmugam Pillai case. The decree passed by the High Court must therefore, be set aside and the decree passed by the Trial Court is restored. ( 11 ) THE same view has been expressed in number of decisions by various courts. In Abdul Faiz Fakhr v. Abdul Hafeez (1 supra), a Division Bench of this Court while considering the proviso to Sec. 58 (c) of the Transfer of Property Act observed, - The language of the proviso to S,58 (c) is perfectly clear and unambiguous and its effect is that an ostensible sale with a stipulation for repurchase shall not be regarded as a mortgage unless this stipulation is contained in the same document which effects the sale. Its object evidently was to shut out an inquiry whether a sale with a stipulation of retransfer is a mortgage where the stipulation is not embodied in the same document. The contention that the proviso should be read as providing only that such a transaction shall not be deemed to be a mortgage by conditional sale with the consequence that it can still be regarded as a mortgage falling under Sec. 58 clauses (d) or (e) if it is established that the intention of the parties was that the transaction should operate as a mortgage and not as an out and out sale with the condition of retransfer cannot be accepted. For it would involve reading into the proviso the words which are not there, and it would, moreover, stultify the new enactment as it would leave the previous state of law practically unchanged. in that case there were three documents, a sale deed, an agreement of re-conveyance and a rental deed. In view of the three separate documents, evidencing the transaction, it was held that the transaction could not be regarded as a mortgage by conditional sale. In Sambiah v. Koteswara Rao (2 supra), a learned single Judge of this Court while considering the suit document in terms of section 58 (c) of the Transfer of Property Act, held that since the said the said transaction took place prior to the proviso, it has to be considered subject to the compliance of the tests and the conditions, and accordingly allowed the appeal dismissing the suit filed by the 1st Respondent for redemption. In /. Seetharamaiah v. P. Bangarayya (4 supra) a Division Bench of this Court while considering a transaction whether the deed is a mortgage by conditional sale or a conditional sale with a condition to repurchase, laid down various tests and ultimately on consideration of the entire material, it was held that Ex. B-1 sale deed is not a mortgage by conditional sale, but it is only an outright sale with a condition of repurchase, and the right conferred by virtue of that condition on the plaintiff to get the property re-conveyed to him was not availed by him, and therefore, the sale has become absolute. In Sunil v. Aghor (7 supra), a learned single Judge of the Gauhati High Court while considering the proviso to Sec. 58 (c) of the transfer of Property Act held that, - proviso to Sec. 58 (c) envisages that the condition effecting or purporting to effect the sale as a mortgage transaction, must be incorporated in one and the same deed. In the present case, there were three separate deeds as already stated. The condition effecting or purporting to effect the sale as a mortgage has not been embodied in the sale deed. Therefore, under S. 58 (c) the defendant is debarred from saying that the transaction was in the nature of mortgage or a mortgage by conditional sale. In the present case, there were three separate deeds as already stated. The condition effecting or purporting to effect the sale as a mortgage has not been embodied in the sale deed. Therefore, under S. 58 (c) the defendant is debarred from saying that the transaction was in the nature of mortgage or a mortgage by conditional sale. " ( 12 ) IF we examine the facts of the present case in the light of the above decisions as well as the provision of Sec. 58 (c), especially the proviso to the said sub-section, it is clear that there is no stipulation of re-purchase or re-conveyance in the sale deed that was executed under Ex. A-1. The agreement of re-conveyance was by way of a separate document which was evidenced by Ex. A-3. In the light of separate document that was executed without any specific incorporation of the stipulation in the sale deed as to the re-conveyance agreement, the sale could not be treated as a mortgage by conditional sale. ( 13 ) FURTHER, admittedly, the plaintiff did not comply the terms of payment within the period of five years from the date of Ex. A-3, i. e. , 7-6-1970. The suit was admittedly filed in the year 1982 where the notice was allegedly issued by the plaintiff on 1-6-1982. which is admittedly long after the period of five years. Therefore, the plaintiff is not entitled either for redemption of the alleged mortgage or even for enforcement of the agreement, which in fact, was not sought for. ( 14 ) UNDER the above circumstances, the plaintiff is not entitled to the relief that was sought for and accordingly the judgment and decree of the lower court is set aside, and the suit is dismissed. Consequently, the review petition is allowed. No costs. .