Hon'ble RASTOGI, J.—Instant petition has been filed by M/s BD & P Hotels (India) (P) Ltd who was in possession of Hotel Mukandgarh Resorts since 04/08/2009 on having purchased lease hold rights through respondent-6 (secured creditor) under Securitisation & Reconstruction of Financial Assets & Enforcement of Security Interest Act, 2002 (“SARFAESI Act”), but has been dispossessed on 09/03/2010 pursuant to warrant of possession issued by the Executing Court, Jhunjhunu on 05/03/2010 in Execution Appl.No.35/2009) at the behest of decree holder in execution of Arbitral Award dt. 15/02/2009 passed for recovery of possession and arrears along with interest against its lessee (respondent-5), possession whereof was taken over by secured creditor (TFCI-respondent-6) with whom lease hold rights were mortgaged creating security interest by respondent-5 with the consent of lessor (respondent-2 to 4) on 22/08/2008.

2. Question arising for consideration in instant case is as to whether petitioner in whose favour lease hold rights over Mukandgarh property was transferred as an assignee of secured creditor (TFCI) under SARFAESI Act and after the possession was transferred, in absence of any conditions of lease being violated after having come into possession, could be dispossessed by Executing Court by issuance of warrant of possession impugned dt. 05/03/2010 in execution of Arbitral Award/ decree dt.15/02/2009 passed in arbitration proceedings between lessor (respondents-2 to 4) & original lessee (respondent-5), wherein indisputably neither secured creditor (TFCI) nor its assignee (petitioner) at any point of time were heard, while the lessee (respondent-5) was not holding possession of the property on the date of Arbitral Award/decree (supra) on account of being dispossessed by secured creditors under SARFAESI Act, in such situation, whether remedy lies to approach civil court for being dispossessed, by filing application U/s 47 CPC read with O.21, R.97 & 99, CPC or writ petition U/Art.226 & 227 of the Constitution is maintainable against warrant of possession impugned (supra).

3. Facts relevant for examining the controversy set forth are that Hotel Mukandgarh Resorts situated at Mukandgarh (“Mukandgarh property”) was initially leased out by its owner (respondents-3 & 4) vide registered lease deed dt.25/09/1992 in favour of M/s Mukundgarh Resorts with a right to sublease – pursuant to which, original lessee (M/s Mukundgarh Resorts) sub-leased Mukangarh Property in favour of M/s Cross Country Hotels (P) Ltd (respondent-5) for a period of 30 years w.e.f. 14/07/1992 on the terms & conditions vide registered lease deed dt. 13/10/1992. Under Cl.5 of lease deed, the lessee has an option to create encumbrances on lease hold rights possessed by them in favour of financial institution for loan/finances for development of the Fort; and under the authority of Cl.5 whereof besides consent (Ann.R.6/1 & R.6/2) given by respondents-2 to 4 in 1993, mortgaged lease hold rights of Mukandgarh property with respondent-6 (TFCI) by creating security interest over the property.

4. It appears that defaults were committed by the mortgagor (respondent No.5) in regard to the loan granted by respondent-6 (secured creditor); as such Org. Appl.-26/2000 was filed by secured creditor (respondent-6) before Debts Recovery Tribunal, New Delhi (“DRT”) but pendente application, SARFAESI Act 2002 came into force and thereafter notice dt.08/01/2003 U/s 13(2) of SARFAESI Act was served calling upon respondent-5 to repay the amount within 60 days and since respondent-5 was unable to pay outstanding loan within stipulated period provided U/s 13(2) and pursuant to aforesaid notice, authorised officer of respondent-6 took possession of Mukandgarh property on 22/08/2008 under SARFAESI Act. Possession being taken over (supra) was challenged by respondent-5 (borrower) by way of CWP-9609/2008 which was dismissed vide order dt.17/04/2009 observing that remedy of appeal lies U/s 17 of SARFAESI

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