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TMI Blog2003 (4) TMI 589X X X X Extracts X X X X X X X X Extracts X X X X ..... 001 For the Respondents: R. Santhanam, Adv. for respondent No. 1, M. Balachandar, Adv. for Respondent No. 3 and Sundaravadivel, Adv. for Respondent No. 4 JUDGMENT N.V. Balasubramanian, J. 1. These two Writ Appeals are filed under Clause 15 of Letters Patent against the common order passed by the learned Single Judge in W.P. Nos. 19700/2000 and 20725/2000 dated 23.7.2001. 2. The appellants are the tenants of the properties covered in the notice issued by the second respondent. According to the appellants, the properties were let out to them by one P.V. Paulson Ukkuru and the said P.V. Paulson Ukkuru is the sole proprietor of M/s. Josephaul Steels to which the third respondent, namely, Canara Bank, Chennai had extended cert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellants to move the appellate authority under the Recovery of Debts due to Banks and Financial Institutions Act, 1963 (hereinafter referred to as 'Recovery of Debts Act'). Learned Judge while directing the appellants to approach the appellate authority, also held that the Recovery Officer is authorised under the Recovery of Debts Act to evict any person from any property sold in public auction and the contention of the appellants that they are statutory tenants and they could not be evicted has no force. However, learned Single Judge safeguarded the interest of the appellants by observing that the appellate authority should decide the appeal to be preferred by the appellants herein on merits and in accordance with law, uninflu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... occupation of tenant, and the said rule reads as under:- Whether 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 . Rule 41 deals with the application to be preferred by the purchaser of the immovable property when there is resistance o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the above said Rules, the validity of the order passed by the Recovery Officer has to be seen. There is no doubt that the appellants are tenants under the defaulter. It is relevant to mention here that the appellants have deposited the arrears of rent except a small amount and the counsel for the appellants have undertaken that the appellants would clear the entire arrears of rent. 6. We find that the Rules framed under the ITCP Rules largely correspond to the relevant Rules occurring under Order 21 of the Code of civil Procedure relating to the execution of a decree. Rule 39 of the ITCP Rules corresponds to Order 21 Rule 95 C.P.C. which deals with the delivery of possession in occupancy of judgment debtor and Rule 40 of the ITCP Rules c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t course would amount to bypassing and circumventing the procedure laid down under Order 21, Rule 97 in connection with removal of obstruction of purported strangers to the decree. Once such an obstruction is on the record of the executing court the executing court cannot tell such obstructionist that he must first lose possession and then only his remedy is to move an application under Order 21, Rule 99 CPC and pray for restoration of possession. The Supreme Court in Tanzeem-E-Sufia v. Bibi Haliman and Ors. 2003 2 L.W.16 has reiterated the above view. 8. The Delhi High Court in TARA CHAND v. GANGA RAM AIR1978Delhi58 held that if the property is in possession of the judgment debtor or some person on his behalf, the auction purc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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