IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of decision: 24.8.2011 LPA No. 373 of 2011 Santosh Gupta and another …..Appellants vs. Kuldeep Singh and ors ……Respondents CORAM: - HON’BLE MR. JUSTICE HEMANT GUPTA HON’BLE MR. JUSTICE VIJENDER SINGH MALIK Present: - Mr. Vinod Sharma, for the appellants. Mr. Deepak Sibal, Advocate for respondent No. 1. Mr. H.N.Mehtani, Advocate for respondent No. 5. HEMANT GUPTA, J Present appeal is directed against the order passed by learned Single Judge of this Court on 1.4.2010 and on a review application filed by the appellants on 21.1.2011. The State Bank of Patiala-respondent No. 5 has field the recovery suit to recover its dues from M/s Bee Gee Corporation Pvt. Limited as well as the guarantors including the appellants herein. The said suit was decreed by the civil Court but in the meantime, due to enactment of the Recovery of Debt Dues to Banks and Financial Institutions Act, 1993, the proceedings for execution of the decree was initiated LPA No. 373 of 2011 before the Debt Recovery Tribunal. In pursuance of the recovery proceedings initiated before the Debt Recovery Tribunal, the property of the judgment-debtor was put to sale. The auction purchaser is Kuldeep Singh respondent No. 1- herein. The sale was confirmed in his favour. Subsequently, it is not disputed, that the judgment of the civil Court has been set aside in RSA No. 1038 of 1985 decided on 21.4.2009. The auction conducted by the Debt Recovery Tribunal in favour of respondent No. 1 was also set aside. The dispute is whether the appellant as owner is entitled to possession of the property once sold in favour of respondent No.1. Learned Single Judge has ordered that even if the decree has been set aside, the restitution can be claimed on the principles set down under Section 144 of the Civil Procedure Code and that the auction purchaser shall be entitled to retain his possession till duly dispossessed in the process known to law. It is admitted by learned counsel representing respondent No. 1 that the possession has been taken by the appellant on 9.4.2010 though forcibly, after the orders were passed by this Court. Therefore, such act of dispossession runs counter to the order passed by this Court on 1.4.2010 and thus the appellant cannot be permitted to impugn the order passed by this Court in the present appeal. 2 LPA No. 373 of 2011 Having heard learned counsel for the parties, it transpires that admittedly respondent No. 1 is not in possession as on today. Even if, the auction purchaser is allegedly forcibly dispossessed, the remedy against the forcible dispossession lies elsewhere. Since, the appellant is the rightful owner and now in possession, we are of the opinion that the order passed by learned Single Judge that the auction purchaser shall be entitled to retain his possession till duly dispossessed cannot be sustained. Consequently, we allow the appeal and set aside the order passed by learned Single Judge on 1.4.2010 and 21.1.2011. However, liberty is given to respondent No. 1 to claim the possession, if so advised, according to law, in appropriate proceedings. Disposed of in the above terms. (HEMANT GUPTA) JUDGE (VIJENDER SINGH MALIK) JUDGE 24.8.2011 preeti 3