Substantial question of law
Querist :
Anonymous
(Querist) 29 October 2011
This query is : Resolved
I am not from law background. I have following doubt
Normally second appeal lies to high court if it involves substantial question of law. But if the same subject is already decided by supremecourt and in the same high court by another judge, still can high court admit second appeal to decide substantial question of law?
Is there any way we can apply for reconsidering the admission by highcourt instead of waiting for long time to decide the case based on the supreme court decesion.
bhagwat patil
(Expert) 30 October 2011
Yes you can raise the point in pre admission stage.
Guest
(Expert) 30 October 2011
Consideration of substantial question of law depends upon the background and circumstances of the case.
Guest
(Expert) 30 October 2011
Also, what substantial question in law is for you, that may or may not be considered substantial in law by the HC or SC. So, unless you provide some substantial information, any reply by experts on hypothetical basis may not provide you any appropriate guidance to you.
Querist :
Anonymous
(Querist) 30 October 2011
Supreme court has already decided in the case Kashinath Bhaskar v. Bhaskar Vishweshwar, AIR that endorsement on the mortgage deed for payment does not require registration according to.Section 17(2)(xi).
In my case in the first appeal it is already decided that the Mortgage debt discharged fully. However, we don't have Orginal mortgage deed which carried endorsement since we lost it after discharge. However, based on other facts it is decided in First appeal the Mortgage debt is discharged.
Now High court has accepted the second appeal to decide whether the registration of mortgage redemption is compulsory?
Since supreme court has already decided that endorsment does not require registration, in what way it involves susbstantial question of law?
prabhakar singh
(Expert) 30 October 2011
If so is the case The second appeal shall be dismissed on merit.Since admissions was made exparte and judgement cited by you was not brought to the notice of High Court,it admitted the second appeal.
Querist :
Anonymous
(Querist) 30 October 2011
Thanks prabhakar sir, what is the action we need to take now. Since the admissions was made in exparte we did not have choice to to bring this to high court attention.
Now should we wait till the hearing of the case and final judgement
or
can we expedite the process and get the appeal dismissed.
Guest
(Expert) 30 October 2011
Irrespective of whether the Supreme Court has decided in the case "Kashinath Bhaskar v. Bhaskar Vishweshwar, AIR" the provision in Sec.17(2)(xi) of the registration Act, in itself, is quite clear that the endorsement of payment is not necessary to be registered.
Now, if the appeal is preferred on that point of issue, the respondent can very well raise objection to the admission of the appeal at the very admission stage. Even if the second appeal has already been admitted for trial, the appeal is bound to be dismissed on the very ground of the existing provision of law.
However from the description in your latest post, the question still remains unanswered whether the 2nd appeal is preferred against the extinction of mortgage debt or against the registration of the endorsement. If the 2nd appeal lies against the non-payment of debt, the question of law on endorsement on the mortgage deed has nothing to do in the case. The concerned parties need to be concerned only with the proof of payment or non-payment of the mortgage money.
Querist :
Anonymous
(Querist) 30 October 2011
sir, if the case is for non-payment of debt which according to me is question of fact which already decided in first appeal.
Do you feel the second appeal can be admitted to decide this?
Guest
(Expert) 30 October 2011
May be the question of payment already decided, but the right to appeal of the other party cannot be denied, if he has some other facts to the contrary to bring to light. So, better be well prepared to prove your contention.
Querist :
Anonymous
(Querist) 30 October 2011
Heard the learned counsel for the appellant. The substantial question of law that would arise for consideration, is as to whether the repayment of a mortgage would be presumed in the absence of a registered deed of redemption and whether the suit could have been entertained 33 years after the time had lapsed to redeem the mortgage.
admit to consider the above substantial question of law.
Based on the Section 17(2)(xi) and supreme court decision on "Kashinath Bhaskar v. Bhaskar Vishweshwar, AIR", does in the above case any substantial question of law is involved?
prabhakar singh
(Expert) 30 October 2011
Mean while an interruption from peace.No so much debate required as is going on between experts and author.
You should move to expedite the Second Appeal.
Guest
(Expert) 30 October 2011
Dear Anonymous,
From different, but partial posts, I guess you are confused by intermingling of several issues in one single issue of substantial question of law. The substantial question of law should be a single one that too, which is not clearly laid in any Act of law.
At the initial stage you just raised the issue of substantial question of law without mentioning any issue and its background. Thereafter you raised the issue of registration of endorsement of payment on the mortgage deed on which the provision of law is very clear. 3rd you pointed out about issue of payment already decided in appeal, which has no link with your own substantial question of law with particular reference to the case "Kashinath Bhaskar v. Bhaskar Vishweshwar, AIR". Now at 4th place you have raised two issues simultaneously about presumption of repayment in the absence of registered mortgage deed as well as entertainment of suit on lapse of mortgage deed after 33 years, which also do not seem to have any concern with the case "Kashinath Bhaskar v. Bhaskar Vishweshwar, AIR".
In your partial feedback every time, it is quite difficult to presume, as to what actually is the substantial question of law on which you want clarification, while no other issues other than the registration of mortgage deed with endorsement of repayment does not have any concern with the case "Kashinath Bhaskar v. Bhaskar Vishweshwar, AIR".
So, if you are advocate in the case, better come forward, which issue actually is boggling your mind and you want help of the experts? If you are the plaintiff or appellant, better first make it clear in what capacity (plaintiff or appellant) you want to get the issue clarified and what is your advocate's opinion and where he is stuck at?
