RAJIV SAHAI ENDLAW, J.

1. A second application of the plaintiffs under Section 39 Rules 1 and 2 of the CPC, after dismissal of the first application as well as appeal there against before the Division Bench is for consideration.

2. The principle contention of the counsel for the defendant No. 1 is that a second application does not lie and especially after the order dismissing the earlier application for the same relief has merged in the order of the Division Bench in appeal.

3. The factual matrix in which the aforesaid question has arisen is as under. The plaintiffs are the son and daughter of late Shri Des Raj Madan. The only other natural heir of Shri Des Raj Madan, as per the plaintiffs is the defendant No. 2 being the other son of Shri Des Raj Madan and the brother of the plaintiffs. Shri Des Raj Madan was admittedly the owner of property No. 152, Jagriti Enclave, New Delhi. Shri Des Raj Madan is stated to have died on 19th December, 2001 leaving the plaintiffs and the defendant No. 2 as his only natural heirs. The plaintiffs No. 1 and 2 and the defendant No. 2 are thus after the demise of Shri Des Raj Madan stated to be owners of 1/3rd undivided share each in the aforesaid property. The plaintiff No. 1, however, claims to be in exclusive possession of the property.

4. The cause of action for institution of the suit was the notice issued by the defendant No. 1 a State Financial Corporation within the meaning of State Financial Corporation Act, 1951, under Sections 29 and 31 of the said Act to take over the aforesaid property and to dispossess the plaintiff No. 1 therefrom and to sell the said property. It is the case in the plaint that in March, 2003, the plaintiff No. 1 had come across a notice dated 26th February, 2003 issued by the defendant No. 1 stating inter alia that Shri Des Raj Madan had executed a deed of mortgage with respect to the aforesaid property in favour of the defendant No. 1 in consideration of the advances made to the defendant No. 3 Company. The plaintiff No. 1 claims to have replied to the aforesaid notice on 15th April, 2003 informing that Shri Des Raj Madan was never the director, proprietor or partner of the defendant No. 3 Company and also informing of the demise of Shri Des Raj Madan. It is further pleaded that the defendant No. 1 did not take any action after receiving the aforesaid reply of the plaintiff No. 1; however, after five years, another notice dated 1st February, 2008 addressed to the plaintiff No. 1 and the defendant No. 2 as legal heirs of Shri Des Raj Madan was received in which it was stated that Shri Des Raj Madan had stood guarantor to secure the loans by the defendant No. 1 to the defendant No. 3 Company, that the defendant No. 3 Company had not repaid its loans and a sum of Rs. 2,28,20,471/- was outstanding and that if the said amount was not paid till 20th February, 2008, the defendant No. 1 would initiate proceedings under Sections 29 and 31 (supra) to take possession of the property. The plaintiffs instituted the suit pleading that the stand of the defendant No. 1 that Shri Des Raj Madan had stood guarantee for the loans by the defendant No. 1 to the defendant No. 3 Company or had mortgaged the aforesaid property was false inter alia for the reason that Shri Des Raj Madan was at the time of the alleged mortgage in June 2001 was physically handicapped and not of sound disposing mind owing to a paralytic attack, old age and illness. It was further pleaded that the officials of the defendant No. 1 in collusion with the defendant No. 2 had forged and fabricated the documents of mortgage. In this context, para 23 of the plaint is as under:- 23. That the defendant No. 1 cannot give notice under Section 29 and 31 (1) (aa) of the SFC Act to the plaintiffs and defendant NO. 1 also cannot proceed against the plaintiffs or their properties under Section 29 and 31 (1) (aa) of the State Financial Corporation Act. The plaintiff no. 1 cannot be evicted from his only place of re