The appellate court misapplied law by allowing a suit challenging property rights under debt recovery, which is expressly barred, demonstrating the priority of statutory provisions over civil suits.

JUDGMENT

The judgment and decree dated 24.08.2011 of the Subordinate Judge, Udumalpet, in and by which the judgment and decree dated 18.09.2010 of the District Munsif, Udumalpet, was reversed and the matter was remanded to the file of the trial court is put in issue by filing the present appeal.

2. The case, as transpires from the materials available on record are that the mortgage of the subject property by the 2^nd respondent was made in the year 1990 in favour of the 3^rd respondent by of agreement of sale dated 14.12.1988. In the year 1996, the 3^rd respondent filed O.S. No.31/1996 for recovery and the saud suit was transferred and renumbered as T.A. No.921/1997 and T.A. No.514/2002 upon constitution of the Debts Recovery Tribunal. The Tribunal, upon adjudication, decreed the case in favour of the 3^rd respondent herein in the year 1999 and recovery certificate was issued for recovery of a sum of Rs.1,36,45,461/- along with interest. On the basis of the recovery certificate, proceedings were initiated by the Recovery Officer to recover the amount in R.P. No.30 of 2002 and on 17.10.2006, public auction was conducted in which the appellant succeeded in purchasing the property as the successful auction purchaser leading to the issuance of sale certificate, which was also registered.

3. It further transpires from the materials that in the year 2007, the 1^st respondent filed I.A. No.630/2007 in T.A. No.514/2002 under Schedule II Rule 11 (1) of the Procedure for Recovery of Tax claiming inter alia that an agreement of sale was entered into between the 2^nd respondent and 1^st respondent on 14.12.1998 and that as a consequence thereof, suit in O.S. No.408/1994 was filed by the 1^st respondent against the 2^nd respondent claiming the relief of specific performance and the suit was decreed ex parte on 12.01.1995 pursuant to which the 2^nd respondent executed a sale deed in favour of the 1^st respondent and, therefore, the 1^st respondent, as the owner of the subject property claimed absolute ownership and claimed that the sale certificate issued in favour of the appellant is invalid and void.

4. I.A. No.630 of 2007, filed by the 1^st respondent, was dismissed by the Recovery Officer on the ground that the alleged sale, which culminated into the registered sale deed took place subsequent to the mortgage and, therefore, the decree in the suit will not bind the bank as also the auction purchaser. As against the said order, no appeal was filed by the 1^st respondent u/s 30 of the Recovery of Debts Due to Banks & Financial Institutions Act.

5. It is the further averment of the appellant that an unnumbered suit was filed by the 1^st respondent seeking the relief of declaration that he is the absolute owner of the subject property. As against the same, an application was filed to reject the plaint and the trial court, vide order dated 18.9.2010, rejected the claim of the 1^st respondent herein and challenging the same, the 1^st respondent herein, who is the plaintiff in the unnumbered suit, filed A.S. No.15 of 2010 and the appellate court allowed the same on the ground that it is open to the plaintiff to approach the Civil Court challenging the said judgment. Aggrieved by the same, the auction purchaser, viz., the appellant herein, has filed the present appeal.

6. Learned counsel appearing for the appellant submitted that when there is an express bar under the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act with regard to filing of appeal,