( 1 ) HEARD the learned counsel for the applicants, the learned counsel for respondent nos. 1 and 2 and the learned counsel for respondent nos. 3 and 4.

( 2 ) ADMIT. Taken up for final hearing with the consent of the parties. The learned counsel for the respondents waive notice.

( 3 ) THE applicants, who are defendant nos. 1 and 2 in Special Civil Suit no. 18/2004 instituted by respondent nos. 1 and 2 before the Civil Judge, Senior Division, wardha for declaration and permanent injunction, have challenged the order dated 5-4-2004 passed by the 2nd Joint Civil Judge, senior Division, Wardha holding that Civil court has jurisdiction to entertain and try the said suit and thereby answering preliminary issue in the affirmative.

( 4 ) ACCORDING go to applicants they are the secured creditor and the debt obtained by respondent no. 3/defendant no. 3 was classified as non-performing asset. Hence on 15-3-2003 the applicants issued notice under section 13 (2) of the Securitisation and reconstruction of Financial Assets and enforcement of Security Interest Act, 2002, (hereinafter referred to as the "act") to respondent no. 3 for discharging his liability. On 29-10-2003 the applicants issued reminder to respondent no. 3. Since respondent no. 3 failed to discharge his liability, the applicants proceeded u/s 13 (4) of the said Act and took symbolic possession of "vasant Theatre" situated on Nazul Plot No. 10/2 on 14-11-2003.

( 5 ) ON 3-3-2004 respondent nos. l and 2 instituted Special Civil Suit No. 18/2004 contending therein that they are the members of joint family comprising of their parents namely respondent no. 3 (father) and respondent no. 4 (mother ). According to respondent nos. l and 2 "vasant Theatre" is a joint family property and they being co-parceners they have got 1/4th undivided share in the said property. According to them, respondent no. 3, had no right to mortgage "vasant Theatre" without their consent. Hence they sought declaration that "vasant Theatre" is not liable for attachment for recovery of the dues outstanding against respondent no. 3 and for permanent injunction restraining the applicants from selling "vasant Theatre" as the sale would not fetch market price.

( 6 ) THE applicants resisted the suit by filing written statement. They denied all the contentions raised by respondent nos. 1 and 2. The applicants contended that the Civil court has no jurisdiction to entertain the suit in view of the provisions of Section 32 and 34 of the Securitisation and Reconstruction of financial Assets and Enforcement of Security interest Act, 2002. The jurisdiction of the Civil court was taken up as a preliminary issue and was decided by the learned trial Judge as stated earlier. The said order is under challenge.

( 7 ) MR. A. M. Ghare, the learned counsel for the applicants, submitted that section 34 of the said Act provides that "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". Mr. Ghare submitted that Section 17 (1) of the said Act gives a right to appeal to any person (including borrower), aggrieved by any of the measures referred to in section 13 (4) taken by the secured creditor or his authorised officer and such person may make an application to the Debts Recovery tribunal. Thus, according to the applicants, the civil court has no jurisdiction by virtue of section 34 r/w Sec. 17 of the said Act.

( 8 ) MR. A. C. Dharmadhikari, the learned counsel for respondent nos. 1 and 2 as well as Mr. Rahul Dharmadhikari, the learned counsel for respondent nos. 3 and 4, on the other hand, submitted that respondent nos. 1 and 2 are the members of the joint family and are the co-parceners. They have got civil right which can only be inquired into and decided bv a Civil Court. Mr. Dharmadhikari submitted that right of a co-parcener can only be determined by civil court and no