In this revision filed under Sec. 397 read with Sec. 401 Cr.P.C. the revision petitioner challenges the order dated 22-2-2007 passed by the Chief Judicial Magistrate, Thiruvananthapuram in C.M.P. 5129 of 2006 appointing an Advocate Commission to take possession of 12.43 cents of land situated in Survey Nos. 317/A3, 318/B 4 and 318/B7 of Muttathara Village in Thiruvananthapuram Taluk together with the residential building thereon bearing No. T.C. 61 of 2038 and to handover the said property to the authorised officer (Chief Manager), Kesavadasapuram branch of the State Bank of Travancore on or before 13-3-2007.

2. I heard Advocate Sri. C.S. Manu, the learned counsel appearing for the revision petitioner and Advocate Sri. Satish Ninan the learned Counsel appearing for respondents 2 and 3 and Advocate Sri. Ramesh Chander, the learned counsel appearing for the 4th respondent.

REVISION PETITIONER'S CONTENTIONS

3. Advocate Sri. C.S. Manu the learned counsel appearing for the revision petitioner made the following submissions before me in support of the revision:-

The revision petitioner (C.R. Sindhu) is the owner of 12.43 cents of land together with the residential building thereon referred to above. In the year 2002 she borrowed a sum of Rs. 6, 50,000/- from the 4th respondent (Dr. P.L. Rajitlal) and towards security for the said loan she mortgaged the aforesaid property to the 4th respondent by executing a mortgage by conditional sale. The undertaking was that the revision petitioner would repay the loan within a maximum period of six years whereupon the 4th respondent would reconvey the property to the revision petitioner. The possession of the property was, however, retained with the revision petitioner. It appears that the 4th respondent had availed of a loan of Rs. 5,20,000 from the Kesavadasapuram branch of the State Bank of Travancore and had offered the aforementioned property by way of equitable mortgage. The 4th respondent thereafter committed default in paying the loan to the bank whereupon proceedings were initiated by the bank under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (the "Securitisation Act" for short). The bank moved the Chief Judicial Magistrate, Thiruvananthapuram under Section 14 (1) of the Securitisation Act for assistance to the bank in taking possession of the above property which is in the possession of the revision petitioner. Eventhough the transaction between the revision petitioner and the 4th respondent was a loan transaction evidencing a mortgage by conditional sale, it appears that the document which was actually got executed by the revision petitioner was a sale deed as per which the 4th respondent obtained an absolute transfer of the aforementioned 12.43 cents of land together with the building. But the revision petitioner was made to believe that it was a mortgage deed. She will be instituting a civil suit against the 4th respondent for appropriate reliefs against the fraud practiced by him on the revision petitioner. The learned Chief Judicial Magistrate can be moved under Sec. 14 of the Securitisation Act by the secured creditor for taking possession of a secured asset only. The Chief Judicial Magistrate was bound to satisfy himself as to whether the property is a secured asset or not. Similarly, the Chief Judicial Magistrate was bound to satisfy himself that the secured asset was in the possession of the borrower. Here the property is in the possession of the revision petitioner pursuant to the loan transaction between her and the borrower. Hence, the bank was not entitled to take possession of the property from the revision petitioner with whom the bank has no privity of contract. At best, the bank could take only symbolic possession of the property from which the revision petitioner cannot be dispossessed. The proceedings before the Chief Judicial Magistrate who is approached by the secured creditor for assistance is a