- 1 - 904-wp-7029-2011 srj IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7029 OF 2011 The Shivsahyadri Sahakari Pathpedi Ltd. .. Petitioner. V/s. Nanalal M. Patel & Others. .. Respondents. Mr. S. A. Pawar, for the Petitioner. Mr. V. P. Sawant along with Mr. Bhaskar Bhagat, Kiran Mohite and Prajit Manjrekar, for Respondent No.1. Mr. Subhash Satpute i/b. Mr. Sagar Talekar, for Respondent No.4. Ms. Aparna Vhatkar, AGP for Respondent No.6. CORAM: G.S.GODBOLE,J. DATE : 24th NOVEMBER, 2011. P.C:- 1 Heard Mr. Pawar for the Petitioner, Mr. Sawant for Respondent No.1, Mr. Sagar Talekar for Respondent No.4 and the AGP for Respondent No.6. 2 RULE. Rule made returnable forthwith. Service of notice on Respondent Nos.2, 3 and 5 is waived. In view of the peculiar facts of this case, by the impugned order, the Divisional Joint Registrar has passed the interim order directing the Petitioner-Society to restore the possession of - 2 - 904-wp-7029-2011 the property to Respondent No.1. In view of the law laid down by the learned Single Judge (Coram: V. C. Daga J.) in Writ Petition No.6836 of 2008 in the case of Jankalyan Sahari Bank Ltd. v/s. Mr. Mahendra Kalyankar and Others decided on 4th February, 2009, the legal position is very clear that unless and until an attached property is sold in auction, the physical possession of the said property cannot be taken. 3 In the present case, admittedly, the auction has not been conducted. Mr. Pawar submits that in view of the letter dated 15th December, 2010 written by Smt. Ankita N. Patel- widow of the deceased borrower- Mr. Narendra N. Patel, the possession was taken. Merely because the widow of the deceased borrower has requested for taking possession, the Society cannot take possession prior to auction as that would be contrary to the Rule 107 of the M.C.S. Rules, 1961. Hence, no fault can be found in the impugned order in so far as it directs restoration of possession. The question which however arises is whether the possession can be restored to Respondent No.1. I have perused the Panchanama dated 23rd March, 2011. The panchanama makes it clear that the possession was taken jointly from the brother of the deceased namely Viren N. Patel and the widow of the deceased Ankita Patel and the premises were shown as go-down. Thus, the possession could not have - 3 - 904-wp-7029-2011 been directed to be handed over to the Respondent No.1. The Society shall hand over the possession jointly to Viren N. Patel and Ankita N. Patel. It is needless to state the attachment is not vacated and the same is still continued. It is also needless to state that the Society through its Special Recovery Officer will be entitled to continue with the process of auction of that attached property, subject to the out come of the Revision Application which is pending. 4 The Respondent No.1 is, however, granted liberty to apply for further interim relief in the Revision Application and if any such application is made, same shall be decided on its own merits. 5 All contentions of the parties including the contention of the Petitioner that wife of the deceased borrower was not in possession and the contention of the Petitioner that he is in possession are kept open to be adjudicated before the Special Recovery Officer/ Reivisional Authority. 6 Rule made absolute in the aforesaid terms with no order as to costs. (G.S.GODBOLE,J.)