HON’BLE SRI JUSTICE G. BHAVANI PRASAD C.R.P.No. 5881 of 2006 Date: 05-08-2010 Between: Jandhyala Venkata Ramana Murthy ………….. Petitioner and The Indian Overseas Bank and others ………. Respondents HON’BLE SRI JUSTICE G. BHAVANI PRASAD C.R.P.No. 5881 of 2006 ORDER: The Civil Revision Petition is directed against the order in I.A.No.3995 of 2006 in C.M.A.No.207 of 2006 on the file of the II Additional Chief Judge’s Court, Hyderabad, dated 14-11-2006. 2. The Indian Overseas Bank to which Flat No.103 of Nagasri Residency was mortgaged was taking steps under the statute to auction the same for recovery of the money due to it and the revision petitioner filed O.S.No.1078 of 2006 on the file of the V Senior Civil Judge, City Civil Court, Hyderabad against the bank, the borrower and the revision petitioner’s vendor to declare his title and grant of consequential perpetual injunction restraining the bank from attaching Flat No.203 which is being proceeded against, instead of Flat No.103. Pending the suit, he sought for stay of auction of the properties scheduled on 15-11-2006, which request was resisted by the bank claiming that it was only Flat No.103 which was handed over by the bank to the Advocate Commissioner appointed by the Chief Metropolitan Magistrate and not Flat No.203. 3. The trial Court dismissed the petition by an order, dated 28-06-2006 observing that it is open to the revision petitioner to bring the correct facts to the notice of the Chief Metropolitan Magistrate to rectify the mistaken identity of the property as claimed and in view of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, the jurisdiction of the civil Court is ousted. Against the dismissal of I.A.No.832 of 2006 by the said order, the revision petitioner filed C.M.A.No.207 of 2006 on the file of the II Additional Chief Judge, City Civil Court, Hyderabad, and pending the Civil Miscellaneous Appeal, he sought for stay of the auction of the property. 4. The impugned order was passed in that interlocutory application referring to the rival contentions and opining that in view of Sections 14(4) and 17 of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, the revision petitioner has to approach the Debt Recovery Tribunal being a person covered by sub-section (1) of Section 17 and consequently, the petition was dismissed. 5. While admitting the Civil Revision Petition, this Court granted interim stay on 24-11-2006 against proceeding with the auction noting that the dispute is about identity of the property. On 31- 01-2008, this Court refused to vacate the stay considering it just and proper to hear the Revision Petition itself. Thus the auction, which was the subject of the main Civil Miscellaneous Appeal, stood stayed since 24-11-2006 till now. The revision petitioner reiterates his pleas herein contending that the suit for declaration of title and perpetual injunction is beyond the scope of Section 17 of the Special Act and the Civil Court’s jurisdiction was not ousted in respect of such claims by third parties about the identity of the property. It is pleaded that the Debt Recovery Tribunal cannot decide the question of identity. 6. Sri S. Ganesh Rao, learned counsel for the revision petitioner, referred to MARDIA CHEMICALS LIMITED v. U.O.I [1], wherein it was observed that there is an inherent right in every person to bring a suit of civil nature if no statute bars a suit and proceedings under Section 17 of the Special Act are in lieu of a civil suit which is ordinarily available. The test as seen from the decision seems to be whether there is an appropriate provision under the Special Act which can provide for the reliefs claimed. 7. In ICICI BANK LIMITED, BANGALORE v. V. T. PRAKASH [2] also, relied on by the learned counsel for the revision petitioner, a learned Judge of this Court was dealing with Section 17 of the Special Act and observed with reference to a case arising under the Income Tax Act, 1961, that a party aggrieved by an order may institute a suit in civil Court to establish the right which he claims to the property in dispute and consequently rejected the contention with reference to Section 17 of Special Act about the absence of any jurisdiction for a civil Court. The learned Judge also observed that it is always open for the civil Court to pass appropriate orders to safeguard the interest of the parties pending the suit. 8. Sri K.V. Bhanu Prasad, learned counsel appearing for the respondent-bank, has brought to notice that the Civil Revision Petition is directed only against the interlocutory order in Civil Miscellaneous Appeal and the question of jurisdiction has to be gone into in the main Civil Miscellaneous Appeal and no opinion may be expressed on the same in this restricted revision. 9. The request of the learned counsel for the respondent- bank has sufficient force as the question of jurisdiction and the consequential entitlement of the revision petitioner to any interim relief, pending the suit, if the civil Court has jurisdiction are the questions that have to be comprehensively gone into and determined in the Civil Miscellaneous Appeal on merits and it will be suffice to protect the interest of the revision petitioner if it is made clear that the observations made in the impugned order with reference to Section 17 of the Special Act shall not influence the consideration and adjudication of the Civil Miscellaneous Appeal on merits in accordance with law. As the auction in question stood stayed since long, it will be in the interest of justice to direct the lower Court to determine the Civil Miscellaneous Appeal itself on merits expeditiously while continuing the stay till such decision without expressing any opinion on the merits of the dispute herein. 10. Therefore, the proposed auction of the subject property by the first respondent herein shall continue to be stayed till the disposal of C.M.A.No.207 of 2006 on the file of the II Additional Chief Judge’s Court, City Civil Court, Hyderabad and the said Court shall dispose of the said Civil Miscellaneous Appeal on merits, in accordance with law, after a reasonable opportunity of hearing to both parties, within one month from the date of communication of this order uninfluenced by any observations made in this order or in the impugned order. 11. The Civil Revision Petition is ordered, accordingly, without costs. ___________________ G. BHAVANI PRASAD, J Date: 05-08-2010 YCR [1] AIR 2004 SC 2371 [2] 2003 (3) ALD 369