Heard.

2. ADMIT.

3. Taken up for final hearing.

4. The original defendant No. 2 has filed this appeal under Order 43, Rule 1 of the Code of Civil Procedure to challenge the judgment passed by the learned District Judge by which the appeal filed by the respondent No. 1/original plaintiff under section 96 of the Code of Civil Procedure is allowed, the judgment passed by the trial Court on preliminary issue holding that the civil suit filed by the plaintiff is not maintainable, is set aside and the matter is remanded to the trial Court for decision of the civil suit on merits on all other issues.

5. The claim of the appellant bank is :

Shri Kalyanmal Munot was the owner of land Khasra No. 21/1 and Khasra No. 22, admeasuring 3 H 77 R. Out of this land half acre was mortgaged with the appellant bank as security for the loan given to M/s Wardhman Enterprises of which Kalyanmal Munot and Smt. Smeeta Ravindra Munot were partners. According to the bank, the Mortgage Deed was executed on 23rd January, 1991. M/s Wardhman Enterprises failed to repay the loan. Therefore, bank had filed Special Civil Suit No. 569 of 1992 for recovery of its dues. This civil suit was decreed by the judgment dated 10th October, 2000. The judgment and decree passed in Special Civil Suit No. 569 of 1992 was not challenged and attained finality. After establishment of the Debts Recovery Tribunal at Nagpur, the bank had filed Misc. Civil Application No. 167 of 2003 before the Debts Recovery Tribunal, for issuance of recovery certificate. The recovery certificate was issued on 2nd September, 2003 pursuant to which recovery proceedings No. 183 of 2010 were initiated by the recovery officer and steps were taken to sell the mortgaged property. The sale proclamation notice was issued on 18th January, 2004. However, no bidder participated in the auction sale proceedings. The second sale proclamation notice was published on 2nd October, 2005. The respondent No. 1/original plaintiff sent a notice dated 30th October, 2005 by Registered Post Acknowledgment Due through his advocate to the Recovery Officer raising objection for sale of the property. On 31st October, 2005, the Recovery Officer filed objection with the following endorsement :

“Received by post without relevant documents and fees etc. As per the procedure of the DRT, every objector can raise the objection on affidavit with supporting documents and with fees submitted personally or through the advocate to the Recovery Officer and not this way by notice. No action. Simply keep with case file.”

Then on 25th March, 2006, third sale proclamation notice was published and auction was conducted on 25th April, 2006 and the property was purchased by the respondent No. 3. The sale was confirmed on 26th May, 2006 and possession was handed over to the auction purchaser (respondent No. 3) on 1st June, 2006. According to the appellant-Bank, it received Rs. 24,00,000/- in the auction sale.

6. On 17th June, 2006 the plaintiff filed civil suit praying for decree in the following terms :

“1. It be declared that the plaintiff’s property was not liable for attachment and sale in respect of the claim of the defendant No. 2 Bank against firm M/s Vardhaman Enterprises, Nagpur.

2. To declare that the entire recovery proceedings initiated by the Defendant No. 1 and 2 against the plaintiff suit property and to sale certificate issued by Defendant No. 1 in respect of the plaintiff property in favour of Defendant No. 3 to 5 is null and void.

3. Pass a decree of possession in respect of the property described in para 1 above in favour of the plaintiffs and against the defendants, ordering the defendants to withdraw themselves from the suit property immediately and forthwith, failing which they be removed from the suit property by process of law,

4. The Hon’ble Court be further pleased to inject the defendants from interfering into and upon the property described in para 1 above and from interfering with the enjoyment and possession of the pla