JUDGMENT -DAGA V.C., J.:---Heard finally by consent of parties at the stage of admission.

Perused record and documents.

Introduction:

2.The source of this appeal is the order dated 27th November, 2001 passed by the Bombay City Civil Court at Mumbai, dismissing the Notice of Motion moved by the appellant/original plaintiff seeking to restrain the respondents/original defendants by an order of injunction from interfering with the alleged lawful possession of the plaintiff over the suit flat i.e. Flat No. 401, located on the fourth floor of Building No. 5, Neelan Nagar, Mulund (E), Mumbai 400 081 (hereinafter referred to as the "suit flat").

Facts:

3.The facts leading to the present appeal, in nut shell, are as under:

The parties are referred to in their original capacity as they were before the City Civil Court. The defendant No. 3 is the owner of the suit flat. He had mortgaged this flat with defendant No. 2 i.e. Bharat Co-operative Bank (Mumbai) Ltd. ("the bank" for short) by executing necessary loan documents including equitable mortgage dated 6th September, 1995. He failed to repay the amount of loan borrowed from the bank. Consequently, the bank filed suit in a co-operative Court and obtained an order of attachment before judgment on 30th April, 1998 which, ultimately, culminated in the final Award dated 10th February, 2000 with the order of attachment of the property. In the Award, the defendant No. 3 was directed to pay the entire awarded amount in the sum of Rs. 57,31,158/- with simple interest thereon at the rate of 16.5% per annum from 1st January, 2000 till repayment in full and final to the bank and, in the event of default, the bank was granted liberty to sell the attached property, namely, suit flat and was further permitted to adjust the sale proceeds towards their dues with further direction to refund the balance, if any, to defendant No. 3.

4.That after the aforesaid Award, defendant No. 1, the Special Recovery Officer, appointed under the provisions of the Maharashtra Co-operative Societies Act, 1960 ("the Act" for short) took steps to execute the Award on the motion made by the bank. In execution of the Award, he also took necessary steps to take possession of the suit flat by pasting notice on the outer portion of the suit flat on 10th August, 2001. By this notice, the plaintiff being in possession of the suit flat was asked to deliver vacant possession thereof by 20th August, 2001. Being aggrieved by this direction, the plaintiff filed suit being S.C. Suit No. 4392 of 2001 seeking decree of declaration and permanent injunction.

5.The reading of the plaint shows that the declaration sought is that, the defendants are not entitled to dispossess the plaintiff from the suit flat since he is in possession of the suit flat in his own rights and prayed for a decree of permanent injunction restraining defendant Nos. 1 and 2 from interfering with the lawful possession of the plaintiff over the suit flat. The plaintiff contends that he has an independent right to possess the suit flat since he had obtained possession under leave and licence agreement from defendant No. 3 on 1st June, 1993 and is in possession thereof in his own rights. The plaintiff in the suit assets that he has independent right, title and interest over the suit flat and that the order of the Co-operative Court is not binding on him. Consequently, the action to execute the Award of the Co-operative Court and consequent direction directing delivery of possession is bad and illegal. In the plaint a further contention is that the possession over the suit flat constitutes an encumbrance on the property as envisaged under Rule 107 of the Maharashtra Co-operative Societies Rules, 1961 ("said Rules" for short), as such it ought to have been notified in the sale proclamation. The plaintiff further contends that the bank has to follow proper procedure as contemplated under Rule 107 of the said Rules, as such he is entitled to a decree of permanent injunction. The pl

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