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2017 DAILYLAW 560 (MAD)

R. ERAKKAPERUMAL v. UNION BANK OF INDIA

2017-03-03

S.S.SUNDAR

body2017
JUDGMENT : S.S. Sundar, J. S.A.(MD) No. 440 of 2014 -The plaintiff in the unnumbered suit in C.F.R.No.650 of 2012 on the file of the District Munsif Court, Thanjavur, is the appellant in the Second Appeal in S.A.(MD)No.440 of 2014. 2. The appellant in this Second Appeal presented a plaint in C.F.R.No.650 of 2012 on the file of the District Munsif Court, Thanjavur praying for permanent injunction restraining the defendants from in any manner interfering with the peaceful possession and enjoyment of the suit property otherwise than due process of law and upon the fourth defendant repaying a sum of Rs. 60,000/- to the plaintiff. The suit property is a shop building measuring 285 square feet wherein the plaintiff is carrying on business under the name "Rose Medicals". 3. The case of the appellant in the plaint are as follows: 3.1. The plaintiff is a tenant in respect of the suit property and he is running a medical shop. The plaintiff is running the shop along with his brother and the business carrying on the suit property is a partnership business as per the partnership deed dated 21.09.1991. 3.2. The plaintiff was legally inducted as a tenant by the fourth defendant under a rent deed dated 28.08.1991. The monthly rent was Rs. 330/- originally and the plaintiff paid an advance of Rs. 10,000/- to the fourth defendant. The plaintiff has obtained licence from the Assistant Director for Drugs and that he has been paying rent to the fourth defendant. The lease was subsequently renewed on 17.12.2002 and the rent was enhanced to Rs. 600/- per month. Thereafter, the rent was enhanced to Rs. 1,300/- and subsequently to Rs. 2,000/- and the plaintiff is paying the rent regularly without any default and the rent paid to the fourth defendant is acknowledged in a diary note book. The plaintiff is a statutory tenant and that he can be evicted only by due process of law as his possession is legal and protected. The plaintiff also had made improvements by spending about Rs. 2,00,000/- and that the fourth defendant had agreed to adjust this amount in monthly installments or at the time of vacating the property. A further sum of Rs. 50,000/- was also paid as advance. The plaintiff also had made improvements by spending about Rs. 2,00,000/- and that the fourth defendant had agreed to adjust this amount in monthly installments or at the time of vacating the property. A further sum of Rs. 50,000/- was also paid as advance. The plaintiff came to know about the suit property being given as security by the fourth defendant in connection with the loan advanced to one R.M. Lakshmi by the first defendant for which the fourth defendant stood as a guarantor. 3.3. The plaintiff admitted the fact that the suit property was brought to auction on 25.11.2011 pursuant to the recovery certificate obtained by the first defendant in O.A. No. 139 of 2007 before the Debt Recovery Tribunal - II, Chenni. However, it was contended by the plaintiff that his possession is legal and prior to the proceedings before the Debt Recovery Tribunal. It was the further case of the plaintiff that he is a third party to the proceedings and that his suit is maintainable as per the Rules 42, 43 and 45 of the Income Tax (Certificate Proceedings) Rules 1962. 3.4. Sum and substance, it was the plaintiff's case that as a tenant, who was inducted by the fourth defendant pursuant to the rent agreement dated 28.08.1991, he is entitled to protect his possession. It was further contended that the auction purchaser can only take symbolic possession. Since the second defendant has passed an order on 09.01.2012, directing the plaintiff to vacate the suit property and to hand over the key on or before 31.01.2012, the plaintiff stated that he has come forward with this suit. 4. As pointed out earlier, the first defendant is the Union Bank of India who has filed an application in O.A.No.139 of 2007 before the Debt Recovery Tribunal-II, Chennai and obtained a recovery certificate against the principal borrower and the guarantor, the fourth defendant in the suit. The second defendant is the Recovery Officer who has passed the order directing the plaintiff to hand over possession. The third defendant is the auction purchaser. 5. The trial Court rejected the plaint by order dated 24.01.2012 on the ground that there is a specific bar under the SARFAESI Act. The second defendant is the Recovery Officer who has passed the order directing the plaintiff to hand over possession. The third defendant is the auction purchaser. 5. The trial Court rejected the plaint by order dated 24.01.2012 on the ground that there is a specific bar under the SARFAESI Act. The trial Court proceeded to rely upon Section 34 of the SARFAESI Act and held that the Civil Court has no jurisdiction to entertain any suit or proceeding in respect of any matter which falls within the jurisdiction of Debt Recovery Tribunal or an Appellate Tribunal under the Act. The trial Court also relied upon some of the judgments of this Court in support of its stand that the plaint filed by the plaintiff has to be rejected. Further, the trial Court also observed that the suit is one for permanent injunction restraining the defendant from evicting the plaintiff otherwise than due process of law and that the proceedings initiated by the first defendant under the SARFAESI Act is only by due process of law and that the suit is also liable to be dismissed on merits. Further, the period of lease came to an end upon expiry on 12.11.2007 as per the lease deed, and hence, the trial Court also held that the plaintiff cannot claim any right as a tenant. Further, the trial Court observed that the lease deed is invalid as the document itself was not a registered one. Aggrieved by the rejection of the plaint by the trial Court, the plaintiff preferred an appeal in A.S.No.5 of 2012 before the Principal Sub Court, Thanjavur. The appellate Court also dismissed the appeal justifying the rejection of the plaint by the trial Court. Following the judgment of the Hon'ble Supreme Court and this Court, the appellate Court also came to the conclusion that the suit is barred in view of the provisions of SARFAESI Act. Aggrieved by the judgment and decree of the lower appellate Court, the present Second Appeal has been filed by the plaintiff in the unnumbered suit. 6. The learned counsel for the appellant raised the following questions of law: (1) Whether the sale conducted under the SARFAESI Act will bind the tenant who is in possession under a legal contract of tenancy? 6. The learned counsel for the appellant raised the following questions of law: (1) Whether the sale conducted under the SARFAESI Act will bind the tenant who is in possession under a legal contract of tenancy? (2) Whether a tenant who is not a party to the proceedings under the SARFAESI Act or even in a proceedings under the recovery of debt due to the bank and Financial Act 1993 is liable to evicted without taking any proceedings for eviction under the Buildings (Lease and Rent Control) Act? (3) Whether the rejection of plaint filed by the tenant for protection and Tamil Nadu Act 18 of 61 is maintainable even without giving number? 7. It is not in dispute that the property in question is claimed to be in the enjoyment of appellant as a tenant from the year 1991. The fact that the appellant is in possession is also not in dispute. However, pursuant to the recovery certificate obtained by the first defendant in O.A.No.139 of 2007 before the Debt Recovery Tribunal - II, Chennai, the property is brought to sale by public auction on 25.11.2011. The appellant is not in occupation of the properties under a title or right created by the judgment debtor subsequent to the attachment of the properties by the Recovery Officer. The tenancy was stated to be one from 1991 when the property was not under mortgage. The proceedings before Debt Recovery Tribunal commenced much later. In such circumstances, Rule 40 of the Income Tax (Certificate Proceedings) Rules, 1962 is applicable and the same is extracted for convenience. "40. Delivery of immovable property in occupancy of tenant.-Where the immovable property sold is in the occupancy of a tenant or other person entitled to occupy the same and a certificate in respect thereof has been granted under rule 65 of the principal rules, the Tax Recovery Officer shall, on the application of the purchaser, order delivery to be made by affixing a copy of the certificate of sale in some conspicuous place on the property, and proclaiming to the occupant by beat of drum or other customary mode, at some convenient place, that the interest of the defaulter has been transferred to the purchaser." 8. From the reading of Rule 40, it can be seen that the auction purchaser can only take symbolical possession. From the reading of Rule 40, it can be seen that the auction purchaser can only take symbolical possession. The position is also clarified by the Division Bench of this Court in A. Stephen Samuel v. Union of India reported in 2003 (3) CTC 95 wherein it has been held as follows: "9. The appellants herein are not defaulters to the bank. They do not claim to be in occupation of the properties under a title created by the judgment debtor subsequent to the attachment of the properties by the Recovery Officer, nor do they claim that they entered into possession subsequent to the Recovery Certificate issued by the Recovery Officer. There is no doubt that the appellants are the lawful tenants of the defaulter to the bank even before the initiation of the proceedings by the Bank against the defaulter. Therefore, when the property was in the occupation of tenants at the time when it was sold, the auction purchaser would be entitled to symbolical possession of such property, but he would not be entitled to claim that the tenants should be directed to hand over actual possession of the respective portions of the property in their possession. In our view, it is impermissible for the auction purchaser to get actual possession of the property by throwing the tenants out of the property. The auction purchaser, in our view, will be entitled to possession in accordance with Rule 40 of ITCP Rules and the delivery contemplated in the Rule is not actual delivery, but symbolical delivery of the property to the auction purchaser. 10. It is also relevant to notice that the Recovery Officer has not followed the procedure prescribed in Rules 41 to 45 of ITCP Rules. The Recovery Officer without holding an enquiry and without hearing the appellants who are the tenants, has straight away passed the order directing the tenants to vacate and hand over possession of the properties in their possession. The Recovery Officer without holding an enquiry and without hearing the appellants who are the tenants, has straight away passed the order directing the tenants to vacate and hand over possession of the properties in their possession. It is also curious to note that he relied upon both the Rules 39 and 40 of ITCP Rules which cover two different situations and it shows that he has not applied his mind to the question whether the appellants are in occupation of the properties on the basis of the right created by the defaulter subsequent to the attachment or whether the appellants are in possession of the property in their own right." 9. Further, in the present case, the order directing recovery of possession is passed by recovery officer under the provisions of Recovery of Debts due to Banks and Financial Institutions Act, 1992. The sale was also under the said Act and not under SARFAESI Act. Hence, the judgment of the trial Court and lower appellate Court dismissing the suit by stating that there is a bar under Section 34 of the SARFAESI Act are also unsustainable. Section 34 of SARFAESI Act reads as follows: "34. Civil court not to have jurisdiction.-No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which a Debts Recovery Tribunal or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993)." 10. When the present suit is not challenging the proceedings under SARFAESI Act, the same cannot be thrown out by citing Section 34 of SARFAESI Act. The suit is one under Rule 47 of the Income Tax (Certificate Proceedings) Rules, 1962. Hence, the judgment of the courts below in rejecting the plaint is erroneous. The Courts below have not applied their mind to the relevant provisions and failed to distinguish the judgments which are inapplicable to the present case. 11. The trial Court has further held that plaintiff cannot claim as a lawful tenant based on the unregistered lease deed. Hence, the judgment of the courts below in rejecting the plaint is erroneous. The Courts below have not applied their mind to the relevant provisions and failed to distinguish the judgments which are inapplicable to the present case. 11. The trial Court has further held that plaintiff cannot claim as a lawful tenant based on the unregistered lease deed. From the averments in the unnumbered plaint, it is the specific case of the appellant that he was in possession as a tenant under a rent deed dated 28.08.1991 and that the lease was subsequently renewed on 17.02.2002. Since the plaint rejected mainly on the ground of bar under Section 34 of the SARFAESI Act, the findings of the trial Court as regards tenancy are unwarranted at the stage of deciding the maintainability of the suit by invoking the jurisdiction under Order 7, Rule 11 of C.P.C. It is also a settled position that for rejecting the plaint under Order 7, Rule 11 of C.P.C., the Court has to consider only the averments in the plaint. Hence, it is desirable to give an opportunity to the plaintiff in the suit to establish his case on merits at the time of trial. The Second Appeal is allowed and the judgment of the Appellate Court in A.S.No.5 of 2012 on the file of the Principal Sub Court, Thanjavur, confirming the judgment and decree of the trial Court in unfiled plaint in C.F.R.No.650 of 2012 on the file of the District Munsif Court, Thanjavur, is set aside. The matter is remitted to the trial Court with a direction to the trial Court to number the plaint and dispose of the suit on merits and in accordance with law. Both the parties in the second appeal in S.A.(MD)No.440 of 2014 are directed to appear before the trial Court on 27.03.2017. The Second Appeal is disposed of accordingly. No costs. Consequently, the connected miscellaneous petitions are closed. S.A.(MD) No.753 of 2012 12. The plaintiff in the unnumbered suit in C.F.R.No. 647 of 2012 is the appellant in the Second Appeal in S.A.(MD)No. 753 of 2012. 13. The Second Appeal is disposed of accordingly. No costs. Consequently, the connected miscellaneous petitions are closed. S.A.(MD) No.753 of 2012 12. The plaintiff in the unnumbered suit in C.F.R.No. 647 of 2012 is the appellant in the Second Appeal in S.A.(MD)No. 753 of 2012. 13. The appellant in this second appeal presented a plaint in C.F.R.No.647 of 2012 on the file of the District Munsif Court, Thanjavur, to grant a decree for permanent injunction restraining the defendants and their men from in any manner interfering with the peaceful possession and enjoyment of the suit property till 07.08.2017 or until the second defendant repaying a sum of Rs. 6,00,000/- to the plaintiff. The suit property is a land measuring an extent of 1228 square feet along with the building in Survey No.TS 839/E Aattumanthai Street, Keelavasal, Thanjavur Taluk. 14. The case of the appellant in the plaint are as follows: 14.1. The fourth defendant in the suit namely G. Mahbool Husain, as owner of the suit property, executed a registered othi document dated 06.07.2005 in favour of the plaintiff after receiving a sum of Rs. 3,50,000/- and put the plaintiff in lawful possession. Thereafter, the plaintiff also spent about a sum of Rs. 4,00,000/- towards interior decoration and is running a chicken shop in the name and style of "Sree Geetham Broilers". Though the original period was only five years, thereafter on 08.02.2010, the othi period was extended upto 7 years from 08.02.2010. Hence, the plaintiff is entitled to be in possession till 07.08.2017 and that he is entitled to be in possession until he is lawfully evicted under due process of law after the period of othi i.e., 07.08.2017. 15. It appears that the first defendant filed O.A.No.139 of 2007 before the Debt Recovery Tribunal - II, Chennai and obtained a recovery certificate as against one R.M. Lakshmi and others including the fourth defendant who stood as guarantor for the principal borrower. Pursuant to the recovery certificate, the suit property was brought to auction on 25.11.2011 and the third defendant alleged to have purchased the suit property. 16. The plaintiff's possession is legal and that he was put in possession long prior to the time when the suit property was brought to sale. Pursuant to the recovery certificate, the suit property was brought to auction on 25.11.2011 and the third defendant alleged to have purchased the suit property. 16. The plaintiff's possession is legal and that he was put in possession long prior to the time when the suit property was brought to sale. Though the plaintiff had filed a claim petition before the Recovery Officer, Debt Recovery Tribunal-II, Chennai, in miscellaneous application No.193 of 2011 in DRC No.113 of 2009 in O.A.No.139 of 2007. The said application was dismissed by the Recovery Officer. Since the remedy of the plaintiff was intimated to move the Civil Court for recovery of the mortgage amount, the plaintiff is entitled to get the relief from the Civil Court. 17. The plaintiff also relied upon Sections 42, 43 and 45 of the Income Tax (Certified Proceedings) Rules, 1962, to maintain the suit before the Civil Court. Since the purchaser namely the third defendant is trying to dispossess the plaintiff and the second defendant had sent a letter on 09.01.2012 directing the plaintiff to vacate the suit property and to hand over the key on or before 31.01.2012, the plaintiff apprehended that he would be forcibly thrown out. Hence, he contended that he is entitled to the relief prayed for. 18. The trial Court rejected the plaint by order dated 24.01.2012 by giving identical reasons given by the trial Court while rejecting the plaint filed in C.F.R.No.650 of 2012 which is the subject matter of Second Appeal (MD) No.440 of 2014. Further, the trial Court also has taken note of the fact that the usufructuary mortgage is only subject to the unfettered rights of the Bank to proceed against the property in respect of which a mortgage was created in favour of the bank long prior to the usufructuary mortgage alleged by the plaintiff. Hence, on the question of maintainability, the unnumbered plaint was rejected. Aggrieved by the same, the plaintiff preferred an appeal in A.S.No.6 of 2012 on the file of the Principal Sub Court, Thanjavur. The appellate Court also fell in line with the trial Court and dismissed the appeal. Aggrieved by the same, the present second appeal has been filed by the unsuccessful plaintiff. 19. Aggrieved by the same, the plaintiff preferred an appeal in A.S.No.6 of 2012 on the file of the Principal Sub Court, Thanjavur. The appellate Court also fell in line with the trial Court and dismissed the appeal. Aggrieved by the same, the present second appeal has been filed by the unsuccessful plaintiff. 19. The following questions of law were raised by the appellant in the memorandum of grounds: (1) Whether the Courts below are right in rejecting the plaint invoking the provisions of SARFAESI Act, when the case of appellant comes under the provisions of The Recovery of Debts due to the Banks and Financial Institutions Act, 1992? 2. When the remedy to the appellant to protect his possession is only by instituting a suit under Rule 47 of Income Tax (Certificate Proceedings) Rules, 1962 as against the action initiated by respondents 1 and 2 whether the Courts below are right in rejecting the plaint without even numbering? 20. The learned counsel for the appellant in S.A. (MD) No.753 of 2012 relied upon certain provisions of the Income Tax (Certificate Proceedings) Rules, 1962. The contention of the learned counsel for the appellant is that specific procedure has been prescribed by rules for resistance or obstruction by third party when auction purchaser seeks delivery of possession. It is not in dispute that the provisions of Income Tax (Certificate Proceedings) Rules, 1962, are applicable by virtue of Section 29 of the Recovery of Debts due to Banks and Financial Institutions Act, 1993. Rule 41 to 47 which comes under Part VI of the Rules are extracted for convenience: "41. Resistance or obstruction to possession of immovable property.-(1) Where the purchaser of immovable property sold in execution of a certificate is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Tax Recovery Officer complaining of such resistance or obstruction within thirty days of the date of such resistance or obstruction. (2) The Tax Recovery Officer shall fix a day for investigating the matter and shall summon the party against whom the application is made to appear and answer the same. 42. (2) The Tax Recovery Officer shall fix a day for investigating the matter and shall summon the party against whom the application is made to appear and answer the same. 42. Resistance or obstruction by defaulter.--Where the Tax Recovery Officer is satisfied that the resistance or obstruction was occasioned without any just cause by the defaulter or by some other person at his instigation, he shall direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the Tax Recovery Officer may also, at the instance of the applicant, take steps to put the applicant into possession of the property by removing the defaulter or any person acting at his instigation. 43. Resistance or obstruction by bona fide claimant.-- Where the Tax Recovery Officer is satisfied that the resistance or obstruction was occasioned by any person (other than the defaulter) claiming in good faith to be in possession of the property on his own account or on account of some person other than the defaulter, the Tax Recovery Officer shall make an order dismissing the application. 44. Dispossession by purchaser.--(1)Where any person other than the defaulter is dispossessed of immovable property sold in execution of a certificate by the purchaser thereof, he may make an application to the Tax Recovery Officer complaining of such dispossession within thirty days of such dispossession. (2) the Tax Recovery Officer shall fix a day for investigating the matter and shall summon the party against whom the application is made to appear and answer the same. 45. Bona fide claimant to be restored to possession.-- Where the Tax Recovery Officer is satisfied that the applicant was in possession of the property on his own account or on account of some person other than the defaulter, he shall direct that the applicant be put into possession of the property. 46. Rules not applicable to transferee lite pendente.-- Nothing in rules 43 and 45 shall apply to resistance or obstruction by a person who whom the defaulter has transferred the property after the service of a notice under rule 2 of the principal rules or to the dispossession of any such person. 47. 46. Rules not applicable to transferee lite pendente.-- Nothing in rules 43 and 45 shall apply to resistance or obstruction by a person who whom the defaulter has transferred the property after the service of a notice under rule 2 of the principal rules or to the dispossession of any such person. 47. Right to file a suit.--Any party not being a defaulter against whom an order is made under rule 42 or rule 43 or rule 45 may institute a suit in a civil court to establish the right which he claims to the present possession of the property." 21. The learned counsel for the appellant relied upon Rule 47 and submitted that the third party can maintain a suit in a Civil Court to establish his right to protect his possession. In this case, the plaintiff has come forward with a case before this Court by alleging that the fourth defendant in the suit had executed a registered othi deed in favour of the plaintiff by a document dated 06.07.2005 and that the usufructory mortgage was for a period of five years for a sum of Rs. 3,50,000/-. It is the case of the appellant that the plaintiff is running a chicken shop in the name and style of "Sree Geetham Broilers". It was also the case of the appellant that on 08.10.2010 on receipt of a further sum of Rs. 2,50,000/- the previous othi was extended for a further period of 7 years from 08.10.2010 to 07.08.2017. Since the usufructory mortgage is for a period upto 07.08.2017, the learned counsel for the appellant submitted that his possession till 07.08.2017 cannot be disturbed as the proceedings for recovery of money was initiated by the first defendant only on 16.11.2007 by filing an application in O.A. No. 139 of 2007. The auction was conducted only on 25.11.2011 and the sale deed was also issued to the purchaser namely the third defendant only on 30.12.2011. Though the appellant admitted that the claim petition was filed by him in M.A.No.193 of 2011 in DRC No.113 of 2009 in O.A.No.139 of 2007 before the Debt Recovery Tribunal, on 14.12.2011 and that the said petition was dismissed on 29.12.2011 itself, the appellant counsel strenuously contended that neither the dismissal of claim petition nor the provisions of SARFAESI Act or any other statute will bar the present suit. 22. 22. Relying upon the facts now highlighted by the appellant before this Court, it was the paramount submission of the learned counsel for the appellant that the Courts below have erroneously relied upon the provisions of SARFAESI Act when the application for recovery of money and the property was brought to auction under the provisions of Recovery of Debts Due to Banks and Financial Institutions Act 1963. 23. The fact that the suit property was mortgaged by the fourth defendant in favour of the first defendant long prior to the alleged othi deed dated 06.07.2005 is not in dispute. The appellant relies upon only the usufructory mortgage deed dated 06.07.2005. This mortgage is admittedly one created after the equitable mortgage created by the owner of the property in favour of the Bank is 1995. Rule 42 of the Income Tax (Certificate Proceedings) Rules 1962, clearly stipulates that the Tax Recovery Officer shall direct the applicant in the application filed under Rule 41 to put into possession of the property where the applicant is resisted or obstructed in taking possession and that the Tax Recovery Officer can take steps to put the auction purchaser into the possession of the property by removing the defaulter or any one acting under him. The Tax Recovery Officer can only entertain the obstruction by a bona fide claimant whose claim is bona fide and that his claim is independent and on his own accord or on account of some other person other than the defaulter. Rules 44 and 47 gives a right only to a third party who has an independent right. A person who claim right under the defaulter is not entitled to resist or obstruct when an application for delivery of possession is filed by the auction purchaser. Similarly a suit can be filed only by a stranger who has got an independent right or title and no suit can be filed by any one claiming under the defaulter or the fourth defendant. In this case, on the admitted facts, the appellant is only a person who claims right under the fourth defendant as a mortgagee based on a mortgage created after the equitable mortgage in favour of Bank and he cannot maintain the suit. In this case, on the admitted facts, the appellant is only a person who claims right under the fourth defendant as a mortgagee based on a mortgage created after the equitable mortgage in favour of Bank and he cannot maintain the suit. When the claim petition filed by the appellant is dismissed by the Tribunal, the Tribunal has passed an order rejecting his claim on the ground that he has no independent right. When the order of Tribunal rejecting the claim application filed by the appellant has reached finality the same issue cannot be raised once again in a separate suit. Hence, the unnumbered plaint cannot be entertained as the earlier order dated 29.12.2011 in the claim petition in M.A. No. 193 of 2011 in DRC No.113 of 2009 in O.A.No.139 of 2007 on merits would operate as res judicata. The usufructory mortgage dated 06.07.2005 is only subject to the previous mortgage that was created by the fourth defendant and as such the plaintiff has only a personal claim under a defaulter/fourth defendant. In such circumstances, there is no merit in the contentions raised by the learned counsel for the appellant. The learned counsel for the appellant relied upon a judgment of the Hon'ble Supreme Court in the case of Nitin Gunwant Shah v. Indian Bank and others reported in (2012) 8 SCC 305 . In the said judgment in paragraphs 37 and 38, the Hon'ble Supreme Court has held as follows: "37. Rule 47 stipulates that any person other than the defaulter against whom an order under Rule 42 is passed is entitled to file a civil suit to establish his right for possession of the property. 38. The scheme of the above provisions clearly establishes an alternative procedure for the eviction of a person (third party to the proceedings) in occupation of a property which is brought to sale pursuant to a recovery certificate issued under the 1993 Act. We have already taken note that there is a possibility of a person other than the judgment-debtor being in possession of the property of the judgment-debtor which is recognised even under Order 21 of the Civil Procedure Code and under Rule 98. It provides for the eviction of such persons in an appropriate case where it is found that the person in possession is not legally entitled for the same. It provides for the eviction of such persons in an appropriate case where it is found that the person in possession is not legally entitled for the same. The Rules under the Income Tax Act which are adopted for the purpose of the recovery of debts due to the financial institutions and banks under the 1993 Act also provide a similar authority of law. The law further provides under Rule 47 that any person so evicted is entitled to file a separate suit to establish his legal claim. Obviously, such a right is acknowledged in recognition of the fact that an enquiry of the claim of the third party under the Rules is summary in nature by a Quasi-Judicial Forum and therefore, an examination of the issue by a Judicial Forum would adequately protect the interests of such third party or the purchaser, as the case may be." 24. Appellant is not a tenant. The right provided under Rule 47 to a third party who has not claimed under the judgment debtor/defaulter cannot be claimed by the present appellant. The learned counsel for the appellant then relied upon a judgment of a Division Bench of this Court in the case of A. Stephen Samuel v. Union of India reported in 2003 (3) CTC 95 wherein this Court has held that a person who is in possession of the property as a tenant and the tenancy is prior to the issuance of the recovery certificate, their possession is lawful. It was further held by the Hon'ble Division Bench of this Court that the auction purchaser in such cases is entitled to symbolic delivery only and not actual possession. The facts of the case are different. In that case, there was no mortgage of the property. The property was proceeded only pursuant to the recovery certificate issued by the Debt Recovery Tribunal. Hence, it was held therein that the possession of the tenant who was inducted prior to the recovery certificate is protected. Since the possession of the appellant as a mortgagee was subsequent to the mortgage that was created by the fourth defendant in favour of the first defendant, it is not protected and the claim of the appellant as a person in possession as a mortgagee is only subject to the right of the first defendant under the previous mortgage, there is no merit in the second appeal. In view of my conclusions, though the first question of law is answered in favour of the appellant, all the other questions of law are answered against the appellant in S.A.(MD) No.753 of 2012. Hence, the second appeal is dismissed with costs. 25. Consequently, the connected miscellaneous petitions are closed.