This appeal is filed by the appellant challenging the

order dated 24.04.2016 passed in O.S.No.471/2015 by the

IV Additional Civil Judge and JMFC, Hassan and judgment

dated 04.07.2016 passed in R.A.No.44/2016 by the II

Additional Senior Civil Judge and J.M.F.C., at Hassan.

Parties are referred to as per their ranking

before the trial Court. The appellant is the plaintiff. The

respondents are the defendants.

3. Brief facts of the case are as under:

The plaintiff filed a suit for permanent injunction

restraining the defendants from auctioning the suit

schedule property. It is the case of the plaintiff that the

plaintiff married defendant No.1 on 20.03.2008 as per

Muslim

Rituals

prevailing

in

Muslim

Community.

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Subsequently, defendant No.1 ill-treated her and married

another girl. There was a panchayath and in the said

panchayath, defendant No.1 gifted the suit schedule house

measuring 20 feet X 40 feet consisting of 2 floors situated

at Kuvempur Nagar layout. It was a oral hiba which is

permissible under the Mohamadon Law. The plaintiff was

originally a Hindu lady belonging to scheduled caste.

Defendant No.1 insulted her. Hence, she instituted a

criminal case against defendant No.1 at Pension Mohallah

Police Station and filed a petition under the provisions of

the Protection of Women from Domestic Violence Act,

2005 (for short 'the Act'). Defendant No.1 availed a loan

of Rs.1,25,000/- on 23.06.2007 by mortgaging the suit

schedule

property.

Again,

he

availed

a

loan

of

Rs.4,00,000/- on 11.07.2013 and failed to repay the

same. Notice was issued to defendant No.1. Defendant

No.2 intimating that suit schedule house will be auctioned

for non-payment of mortgaged loan. The petitioner

aggrieved by the auction initiated by defendant No.2 under

Securitization and Reconstruction of Financial Assets and

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Enforcement of Security Interest Act, 2002 (for short 'the

SARFAESI Act') filed a suit. Defendant No.1 filed an

application under Order VII Rule 11 of C.P.C., to dismiss

the suit on the ground that the suit is barred by law under

the SARFAESI Act. The said application was opposed by

the plaintiff by filing objections. The trial Court after

hearing

the

parties

allowed

the

application

and

consequently, rejected the plaint as barred by law. The

plaintiff aggrieved by the order of rejection of plaint, filed

appeal in R.A.No.44/2016. The First Appellate Court, after

hearing the parties, has framed the following points for

consideration:

1. Whether the trial Court has committed an

error in rejecting the plaint holding that the

suit

is

barred

by

section

34

of

the

Securitization

and

Reconstruction

of

Financial Assets and Enforcement of Security

Interest Act, 2002?

2. Whether the suit is barred by Order 2 Rule 1

C.P.C.?

3. What order?

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4.

The First Appellate Court, on re-appreciating

the oral and documentary evidence, answered point No.1

in negative and point No.2 in affirmative . The First

Appellate

Court

vide

judgment

dated

04.07.2016

dismissed the appeal. Hence, this second appeal.

5. Heard learned counsel for the plaintiff.

6. Learned counsel for the plaintiff submits that

defendant No.1 orally gifted the suit property to plaintiff

on 09.07.2012, which was reduced into writing on

12.07.2014. He submits that the Debt Recovery Tribunal

has no jurisdiction to decide the validity of the gift under

the SARFAESI Act. He submits that the plaintiff has a

charge over the schedule property. He submits that the

Courts below have committed an error in passing the

impugned orders. Hence, on these grounds, he prays to

allow the appeal.

7. Perused the records and considered the

submissions of learned counsel for the plaintiff.

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8.

It is not in dispute that defendant No.1 is the

owner of the suit schedule property and defendant No.1

availed a loan of Rs.1,25,000/- on 23.06.2007 from

defendant No.2 – Bank and again on 11.07.2014,

defendant No.1 obtained additional loan of Rs.4,00,000/-

by mortgaging the suit schedule