ash 1 wp-5570.95 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO. 5570 OF 1995 Rupee Co-operative Bank Ltd & Anr. .. Petitioners Vs Mrs. Sushila S. Satadeve & Others. .. Respondents -- Shri Prashant Naik for the Petitioners. Shri S.D. Rayrikar, AGP for Respondent Nos.3 to 5. -- CORAM ; A.S. OKA, J DATED : 16TH AUGUST, 2011 ORAL JUDGMENT: . Heard learned counsel appearing for the Petitioners and the learned AGP for Respondent Nos.3 to 5. 2. The second Respondent is the borrower of the first Petitioner Bank. He had obtained a loan of Rs.75,000/- for purchasing a Matador van bearing No.MVL 4334. The said vehicle was hypothecated with the first Petitioner by way of security for repayment of loan. On 27th December, 1994, a recovery certificate was obtained by the first Petitioner for recovery of Rs.82,135/-. It appears that notwithstanding the hypothecation of the Matador Van, on 5th September, 1994 the second Respondent borrower entered into an agreement for sale of the said Matador Van in favour of the first ash 2 wp-5570.95 Respondent. In the execution of recovery certificate, the van was attached and was sought to be auctioned. The first Respondent filed a Revision Application challenging the attachment and prayed for handing over possession of the said Matador van to her. On 30th June, 1995, the Revisional Authority granted stay and directed the first Petitioner to hand over custody of the said vehicle to the first Respondent. On 12th July, 1995 further order was passed by the Divisional Joint Registrar which was by way of interim direction to hand over the said vehicle to the first Respondent within 48 hours. A second Revision Application was preferred by the Petitioners before the State Government. By an order dated 31st October, 1995, the Revision Application was disposed of by directing that the vehicle be returned to the first Respondent. The State Government while passing the order observed that the first Petitioner can proceed against the sureties. 3. The challenge in this Petition is to the orders dated 12th July, 1995 and 31st October, 1995. The learned counsel appearing for the Petitioners invited the attention of the Court to the interim order dated 6th December, 1995 passed by this Court. He also invited the attention of the Court to the order dated 9th February, 2007 passed by this Court on Civil Application No.5049 of 1999 by which the first Petitioner was permitted to auction the said Matador Van. The first Petitioner has tendered an affidavit dated 10th January, 2011 regarding ash 3 wp-5570.95 compliance with the said order in which it is stated that the Matador Van has been sold for the price of Rs.15,000/-. The affidavit is taken on record and marked “X” for identification. 4. None appears for the first and second Respondents. The challenge in this Petition is essentially to the interim order passed by the Divisional Joint Registrar on 12th July, 1995. Perusal of the annexures to the Petition shows that the Matador Van was hypothecated with the first Petitioner as a security for repayment of the loan. During the subsistence of hypothecation, the second Respondent-the borrower transferred the said Matador Van to the first Respondent. Therefore, the first Petitioner rightly attached the Van and put it to auction. The Divisional Joint Registrar has observed that the encumbrance of hypothecation was not entered into the R.C. Book of the said vehicle. The said finding may not be correct in view of the document annexed at 71 to the Petition. Apart from that, the Divisional Joint Registrar had no occasion to pass a drastic order of delivery of possession of the said Van to the first Respondent especially when there was documentary evidence on record to show that the Van was hypothecated with the first Petitioner. The Interim Order dated 12th July, 1995 is patently illegal. In any event, the Petitioners have stated that now the Matador Van has been sold by the Petitioners in view of the interim order passed by this Court. ash 4 wp-5570.95 5. Hence, the impugned orders deserve to be quashed and set aside. Accordingly, the Writ Petition is allowed. The impugned order is quashed and set aside. The Rule is made absolute in terms of prayer clause (a). 6. There will be no orders as to costs. ( A.S. OKA, J )