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2011 (2) TMI 1282 - HC - Indian LawsApplication for grant of temporary injunction restraining the appellant/defendant No. 3 Bank temporarily from taking possession of the suit property or auctioning the same during the pendency of the suit - respondent Nos. 1 and 2 are the original plaintiffs, who have filed Special Civil Suit for declaration, partition, separate possession and permanent injunction in respect of the suit property described in the schedule of the suit property attached to the plaint. The plaintiffs joined their father as the defendant No. 1, since he had mortgaged the suit property with the respondent No. 3-Bank, and the mother of the plaintiffs was joined as the defendant No. 3 - claim of the plaintiffs in the suit is that the suit property is the ancestral Joint Hindu Family property and they are the coparceners of it, having 1/4th undivided share each in the said property. It is claimed in the plaint that the suit property has been purchased by the defendant Nos. 1 and 2 from out of the income from the ancestral property, including the income from the agricultural fields and other immovable properties. It is alleged that the plaintiff Nos. 1 and 2 together are carrying on the ancestral business of selling of books on the ground floor of the suit property and the first floor of the suit property is being used as the residential house of the Joint Hindu Family. It is claimed that the suit property has not been partitioned and hence a decree for partition and separate possession of their share in the suit property has been claimed by the plaintiff to the extent of their share - defendant No. 1 has taken a loan from the defendant No. 3-Bank to satisfy his vices, by mortgaging the suit property with the defendant No. 3-Bank. The defendant No. 3-Bank has issued a notice under section 13(2) of the said Act to the plaintiffs and the defendant Nos. 1 and 2 to discharge the liabilities due and owing to the defendant No. 3-Bank in the sum of Rs. 31,79,484.91 as on 31-12-2007 along with future interest. It is alleged that the defendant Nos. 1 and 2 were not the absolute owners of the entire suit property and had, therefore, no authority to mortgage the same with the defendant No. 3-Bank – Held that:- jurisdiction of civil court to entertain, try and decide a civil suit challenging action of defendant No. 3-bank to take possession of suit property and to sell same to recover its debts by enforcing security interest in suit property in accordance with provisions of section 13, was completely barred by section 34. since jurisdiction of civil court to entertain, try and decide civil suit for partition and separate possession of suit property was not barred by section 34, jurisdiction of civil court to grant permanent and temporary injunction refraining defendants from dealing with suit property or creating third party interest therein was also not ousted by section 34. it was open to plaintiffs to lodge their objection(s) under section 17 before Debts Recovery Tribunal
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