ORDER : 1. The instant appeal is directed against the judgment and order dated 04.01.2023 passed by the learned Single Judge in allowing the petition, setting aside the order passed by the Gujarat State Cooperative Tribunal, Ahmedabad in Appeal No. 497 of 2003 dated 30.06.2009 restoring the award passed by the Board of Nominees, discharging the original petitionerdeceased respondent no. 1 from its liability towards the outstanding loan as a guarantor. The order dated 06.01.2003 passed by the Board of Nominees, Ahmedabad in Lavad Case No. 457 of 2001 has been restored by the learned Single Judge, accordingly. 2. Brief facts relevant to decide the controversy at hands are that the appellant herein, viz. the Ahmedabad Mahila Nagrik Sahakari Bank Ltd. filed a Lavad Case No. 457 of 2001 against the original petitioner and respondents no. 2 to 6 before the Board of Nominees, Ahmedabad on the ground that the respondent no. 2, a proprietory firm of the respondent no. 3 had failed to make the payment of the outstanding dues of the loan advanced by the Bank, viz. the appellant herein. It was noted by the learned Single Judge that the respondents no. 3 to 6 had stood as guarantors in respect of the said loan. It seems that by the judgment and award dated 06.01.2003, the Board of Nominees, Ahmedabad passed a decree in favour of the appellant Bank to the tune of Rs.90,95,448/- with interest at the rate of 23% p.a. and cost of Rs.3,000/-. However, the Board of Nominees came to the conclusion that the original defendant no. 5 and the original defendant no. 6 viz. the original petitioner before the Writ court were discharged from their liability by the bank. 3. Being aggrieved against the order of discharge of the said petitioner and defendant no. 5, Appeal No. 497 of 2003 was filed by the Bank, i.e. the appellant herein before the Gujarat State Cooperative Tribunal, which had allowed the appeal vide judgment and order dated 30.06.2009 and modified the judgment and award of the Board of Nominees holding that the Writ petitioner/original defendant nos. 5 and 6 shall be jointly liable with defendants no. 2 to 4 in the original proceeding for payment of outstanding loan as per the decree dated 06.01.2003. The original petitioner has also been injuncted restraining her from dealing with the mortgaged property till the recovery of the awarded amount. 5 and 6 shall be jointly liable with defendants no. 2 to 4 in the original proceeding for payment of outstanding loan as per the decree dated 06.01.2003. The original petitioner has also been injuncted restraining her from dealing with the mortgaged property till the recovery of the awarded amount. However, on a review application filed by the petitioner being Review Application No. 52 of 2009, the Tribunal vide order dated 29.07.2011 reversed the judgment and order dated 30.06.2009, allowing the appeal affirming the judgment and award dated 06.01.2003 passed by the Board of Nominees, Ahmedabad in discharging the original petitioner/original defendant no. 6 from the loan liability. 4. The appellant Bank filed Special Civil Application No. 14147 of 2011 challenging the order passed in the review application which was set aside by this Court vide judgment and order dated 27.12.2011. Resultantly, the order passed by the Tribunal dated 29.07.2011 in review application has been quashed affirming the order in appeal dated 30.06.2009, setting aside the award of the Board of Nominees to the extent of liability of the original petitioner/guarantor defendant no. 6 towards outstanding loan. Thereafter, the original petitioner filed the Writ petition, out of which the instant appeal has arisen challenging the order dated 30.06.2009 passed in Appeal No. 497 of 2003. During the pendency of the Writ petition, on the demise of the original petitioner, her heirs have been brought on record. 5. The learned Single Judge while allowing the Writ petition, has referred to a Resolution No. 3 passed by the appellant Bank in the meeting of the Board of Directors to discharge the guarantee of the original petitioner (Late Chandrikaben Dhirajlal Parikh) and release the mortgage over her property situated at C/122 Sohamnagar Cooperative Housing Society Ltd. It was held by the learned Single Judge that the Tribunal has committed an error by holding that the guarantor was liable to replace the guarantee for the discharge from the liability. It was held that it was not within the jurisdiction of the Tribunal to see that the respondent no. 1 Bank is secured by the guarantee which is discharged by the Bank itself once Resolution has been passed by the Board of Directors of the respondent Bank discharging the original petitioner, viz. Chandrikaben Dhirajlal Parikh, as a guarantor and replaced by the new guarantor, viz. Mr. Prabhuram Pragjibhai Thakkar. 1 Bank is secured by the guarantee which is discharged by the Bank itself once Resolution has been passed by the Board of Directors of the respondent Bank discharging the original petitioner, viz. Chandrikaben Dhirajlal Parikh, as a guarantor and replaced by the new guarantor, viz. Mr. Prabhuram Pragjibhai Thakkar. The equitable mortgage created in favour of the Bank by Chandrikaben would come to an end with the said resolution. It was held that the Tribunal has committed an error in holding that Chandrikaben Dhirajlal Parikh (original petitioner) would continue as guarantor in spite of the fact that her guarantee was discharged by the respondent Bank by passing Resolution No. 3 in the meeting of the Board of Directors. 6. This opinion drawn by the learned Single Judge is assailed by the learned counsel for the appellant-bank with the submission that the appellant-bank filed a Lavad Suit No. 457 of 2001 against the original borrower before the Board of Nominees under Section 96 of the Gujarat Cooperative Societies Act, 1961 for recovery of the outstanding loan, both against the original borrower and the guarantors. The Board of Nominee, while decreeing the suit on 06.01.2003 in favour of the appellant-bank, had wrongly excluded the original defendant No. 5 and the present respondent No. 1, who was defendant No. 6, by discharging them from the said loan liability. 7. An appeal before the Gujarat State Co-operative Tribunal being Appeal No. 497 of 2003 was filed, which was allowed vide judgment and order dated 30.06.2009 modifying the award of the Board of Nominee dated 06.01.2003 holding that the Original defendant Nos. 5 and 6 were jointly liable with Original defendant Nos. 1 to 4 and granted injunction against the respondent No. 1 herein namely the original defendant No. 6 restraining her from dealing with the mortgaged property till recovery of the awarded amount. A Review Application was preferred by the defendant No. 6/respondent No. 1 before the Tribunal, which was registered as Review Application No. 52 of 2009. The Tribunal vide order dated 29.07.2011 reviewed its earlier decision dated 30.06.2009 confirming the award passed by the Board of Nominees in Lavad Suit dated 06.01.2009. The order passed by the Tribunal in Review Application was subject matter of challenge before this Court in Special Civil Application No. 14147 of 2011, which was allowed setting aside the order passed in the Review Application. The order passed by the Tribunal in Review Application was subject matter of challenge before this Court in Special Civil Application No. 14147 of 2011, which was allowed setting aside the order passed in the Review Application. The original petitioner/respondent No. 1 herein preferred an Intra-Court appeal namely Letters Patent Appeal No. 1229 of 2012, which had been dismissed vide judgment and order dated 24.03.2014 upholding the order passed by the learned Single Judge in the Review Application No. 52 of 2009 dated 29.07.2011. 8. It is stated that after remaining unsuccessful before the Division Bench with the setting aside of the order passed by the Tribunal in the Review Application, the respondent No. 1 herein had preferred Special Civil Application No. 2146 of 2012 challenging the original judgment of the Tribunal dated 30.06.2009, out of which the instant appeal has arisen. 9. It was urged that in this second round of litigation initiated by the original petitioner namely respondent No. 1 herein after having lost in the first round in the Appeal, the learned Single Judge has erred in setting aside the order passed by the Tribunal upholding the order of the Board of Nominee dated 06.01.2003 in Lavad Case No. 457 of 2001 merely on the ground that once the respondent-bank has passed Resolution No. 3 discharging the respondent No. 1 herein as a guarantor in place of a new guarantor, the equitable mortgage created in favour of the bank by original petitioner/respondent No. 1 came to an end. 10. It is the case of the appellant bank that under Section 60 of the Transfer of Property Act, the mortgaged property could be redeemed upon tendering outstanding loan amount only and/or by replacing it with another similar property. If the mortgage is by deposit of title deed, it could not have been redeemed unless another property has been mortgaged or outstanding amount has been paid. 11. In the instant case, none of the two contingencies have been arisen. The original title deed deposited by respondent No. 1 at the time of mortgage of the property in question had not been returned as mortgage has not been redeemed or discharged within the meaning of Section 60 of the Transfer of Property Act, 1882. 12. By the decree of the Board of Nominee, the suit for recovery has been decreed and the Defendant Nos. 12. By the decree of the Board of Nominee, the suit for recovery has been decreed and the Defendant Nos. 1 to 4, against whom decree had been passed have not challenged the same. As far as the Defendant No. 6, namely the respondent No. 1 herein is concerned, the order passed by the Board of Nominee has been set aside by the Gujarat State Co-operative Tribunal vide order dated 30.06.2009, which though was reviewed, but the order passed in the Review has been set aside by this Court with the following observations: “15. On considering the bare facts arising out of this petition, it transpires that the suit filed by the Bank for recovery of outstanding amount from the borrowers and guarantors including respondent No. 3 was decreed in favour of the petitioner Bank vide judgment and award dated 6.1.2003 as stated hereinabove, wherein the Board of Nominee was pleased to discharge original defendant Nos. 5 and 6. The petitioner Bank preferred an appeal as contemplated under Section 102 of the Act against the order of discharge of original defendant Nos. 5 and 6 and the Tribunal vide judgment and order dated 30.6.2009 was pleased to allow the appeal and modified the judgment and award of Board of Nominees and came to the conclusion that original defendant Nos.5 and 6 were jointly liable with original defendant Nos.1 to 4 and also granted further injunction as narrated hereinabove. It is worthwhile to note that the said judgment and order passed in appeal was not challenged before the higher forum available under the law. However, the Review Application has been filed being Review Application No. 52 of 2009 on 25.7.2009 and in Para 4 thereof has contended that the appeal is allowed on the ground that as per resolution No. 3 (mark 20/23), the applicant i.e. original defendant No. 6 was to bring a new guarantor, which has not been brought. The applicant has further stated in the Review Application that such finding is contrary to the record of the Bank and is not in consonance with the resolution. The Bank in its resolution has nowhere stated that the guarantor would be discharged only on bringing a new guarantor and therefore, there is exfacie error and interpretation. The applicant has further stated in the Review Application that such finding is contrary to the record of the Bank and is not in consonance with the resolution. The Bank in its resolution has nowhere stated that the guarantor would be discharged only on bringing a new guarantor and therefore, there is exfacie error and interpretation. It was also further averred in the Review Application that the letter dated 29.5.1997 written by the Bank to the applicant i.e. original defendant No. 6 informing that she has been discharged, is not taken into consideration by the Tribunal and no reasons are assigned for not accepting the same and therefore, there is an error apparent on record. It is also further averred in the Review Application that the deposition of Bank witness Kaushaben, Exh.24 in the admission made by Bank witness is not taken into consideration and therefore, there is an error in the order. It is also further averred in the Review Application that the conclusion arrived at as regards the equitable mortgage and that the property belonging to the applicant therein i.e. original defendant No. 6 is erroneous. It is further averred in the said Review Application that the deposition of Bank witness Kaushaben, Exh. 24 in an admission that no property belonged to defendant No. 6 is mortgaged, is not taken into consideration, whereas taking into consideration the document of equitable mortgage, the conclusion is rendered by the Tribunal and such conclusion is an error apparent on record. It was further averred that there is no mention about the document and the plaintiff has not put the said documents on record and no reliance can be placed on a xerox copy of the said document and therefore, an erroneous order is passed, which is an error of law and an error apparent on the face of the record. The Tribunal, by the impugned order while considering the averments, has allowed the said application.” 13. We may note from the Resolution No. 3 of the Resolution of the appellant-bank that the applicant namely the original petitioner/original defendant no. 6 (in Lavad Suit) was required to bring the new guarantor, which has not been brought. 14. The Tribunal, by the impugned order while considering the averments, has allowed the said application.” 13. We may note from the Resolution No. 3 of the Resolution of the appellant-bank that the applicant namely the original petitioner/original defendant no. 6 (in Lavad Suit) was required to bring the new guarantor, which has not been brought. 14. The learned Single Judge, while passing the judgment and order dated 27.12.2011 setting aside the order of review has noted the averments in the Review Application wherein a reference has been given to the Letter dated 29.05.1997 written by the Bank to the original Defendant No. 6 informing that she has been discharged and observed that the said letter was not taken into consideration by the Tribunal while passing the order dated 30.06.2009. It was also averred that the bank in its resolution has no-where stated that the guarantor would be discharged only on bringing a new guarantor and therefore, the order of the Tribunal dated 30.06.2009 was a result of ex-facie error and interpretation of the resolution of the bank. It was also argued that the Tribunal has wrongly averred that equitable mortgage was created on the property belonging to original Defendant No. 6 whereas no such document was brought on record by the plaintiff. Much emphasis was given on the deposition of the bank’s witnesses, Exhibit 24 to assert that there was admission that no property belonging to Defendant No. 6 was mortgaged and this evidence was ignored by the Tribunal while passing the Order dated 30.06.2009. 15. All these arguments were already taken into consideration by the learned Single Judge in the first round of challenge to note that the Review Application do not refer to any new evidence but the Review Applicant has pointed out only those facts, which have been dealt with by the Tribunal in the order dated 30.06.2009 and no new or important material had been brought on record in the Review Application. 16. 16. From the above-noted facts reflected from the record, it is evident that reference to the Resolution No. 3 of the respondent-Bank in the impugned judgment of the learned Single Judge to hold that the respondent No. 1 namely the original petitioner/original Defendant No. 6 had been discharged and the equitable mortgage created in favour of the bank by respondent No. 1 came to an end, is in ignorance of the abovenoted facts evident from the record. 17. The learned Single Judge has committed an error of law in ignoring the material on record, which would indicate that even if the Resolution No. 3 is taken into consideration for a moment, the original petitioner was not discharged of her liability as a guarantor. She was required to bring a new guarantor, which had not been brought. There is no material on record nor any finding has been returned by the learned Single Judge that the mortgaged property had been replaced by another mortgaged property so as to discharge the original Defendant No. 6 of the loan liability as a guarantor. 18. The reliance placed by the learned counsel for the respondent No. 1 herein namely the original petitioner, on the decisions of this Court in the judgment and order dated 06.08.2014 in Letters Patent Appeal No. 760 of 2014 and another judgment and order dated 21.04.2014 in Special Civil Application No. 17962 of 2013 are of no benefit to the respondent No. 1 herein. 19. For the above, the judgment and order dated 04.01.2023 passed by the learned Single Judge is being set aside. The appeal stands allowed. The writ petition, consequently, stands dismissed. 20. Accordingly, the connected Civil Application stands disposed of.