Nitin Gunwant Shah Vs. Indian Bank
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Head Note
The Code of Civil Procedure, 1908 - Section 51 , Order XXI
Recovery of Debts due to Banks and Financial Institutions Act, 1993 - Section 19(22) - Mortgage of property against payment of dues - Non- payment of amount to Bank - Debt Recovery Tribunal decreed suit and ordered auction of property - Petitioner was occupying the property - His legal status not known asto whether he was in possession of the property tenant or was a trespasser - Prayer of petitioner that he should not be evicted and auction sale should be subject to his right to remain in possession - Held - Prayer was ill-conceived - Without his status being determined - Respondents are at liberty to proceed with the sale of the property in dispute and handover the possession of the property to the purchaser after evicting the petitioner herein - If the petitioner loses the possession of property pursuant to the recovery proceedings initiated by the respondent-bank - The petitioner can always seek restitution of the possession of the property.
The Code of Civil Procedure, 1908 - Order XX Rule (12) , The Transfer of Property Act, 1872 - Section 111
Eviction of a person who was in occupation of property - Whether a person in possession of immovable property is a tenant or a licencee or a trespasser, he cannot be evicted except in accordance with the procedure established by law - The person entitled to possession is required to obtain a decree for eviction from competent Civil Court.
The Code of Civil Procedure, 1908 - Order XXIII Rule (1)
Suit by petitioner that he be declared tenant of premises - Suit dismissed for non-prosecution - Dismissal become final - Second suit is barred under Order 23 Rule 1(4) - Order 23, Rule 1(4) of Civil Procedure Code, inter alia, provides - (1) Where the plaintiff - (a) abandons any suit or party of claim under sub-rule (1), or (b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter of such part of the claim.
Topic(s)-Suit Dismissed for Non-prosecution
Important Decision(s)-
- TP Act, 1882 - Section 111 - Whether a person in possession of immovable property is a tenant or a licencee or a trespasser, he cannot be evicted except in accordance with the procedure established by law - The person entitled to possession is required to obtain a decree for eviction from competent Civil Court.
- CPC, 1908 - Order 23, Rule 1(4) - Suit dismissed for non-prosecution - Second suit is barred under Order 23 Rule 1(4).