Judgment :- G.S. GODBOLE, J. 1. Heard Mr. Pawar for the Petitioner, Mr. Gavnekar for the Respondent Nos. 1 and 2 and Ms. Cardozo, AGP for the Respondent Nos. 3 and 8. 2. Rule. Rule is made returnable forthwith. In view of the controversy involved in this Petition, service of notice of Rule on Respondent Nos. 4 to 7 is dispensed with. The Petition is taken up for hearing forthwith by consent of the parties. 3. By the impugned order dated 11th January, 2012, the learned DJR, CS, Kokan Division, Navi Mumbai, has dismissed the Revision Application No.106 of 2011 filed by the Petitioner essentially on the ground that the Petitioner has not deposited 50% of the recoverable dues. In my opinion, the impugned order is clearly unsustainable for the simple reason that by the Revision Application, the Petitioner was not challenging the recovery certificate but was only challenging the action of the SRO of taking possession of the Flat No. 19, Sneha Sadan, R.G. Gadkari Marg, Panvel. Hence this was not a challenge to the recovery certificate at all and Section 154(2A) of MCS Act, 1960 had no application. 4. As a logical sequetor of this conclusion, I would have normally remanded the matter back to the learned DJR. However, since the Advocates of the Petitioner and Respondent Nos. 1 and 2 have addressed me on the merits of the controversy and since the issue involved in this Petition is squarely covered by the Judgment of the learned single Judge (V.C.Daga,J.) in W.P. No. 6836 of 2008 rendered on 04.02.2009 in the case of Janakalyan Sahakari Bank Ltd., vs. Mr. Mahendra Kalyankar as also Circular dated 28.3.2009 issued by the Commissioner for Cooperation, MS, Pune, I do not deem it necessary to remand the matter back. I have decided the Writ Petition on merit also in view of the Affidavit-in-Reply filed by the Respondent No.2 as also separate Affidavit-in-Reply filed by the Respondent No.1, wherein they have clearly admitted that physical possession of the Flat was taken essentially on account of the fact that the Petitioner did not remain present at the time of levying the attachment on two occasions. 5. In W.P. No. 6836 of 2008 the learned single Judge has observed thus : “2. 5. In W.P. No. 6836 of 2008 the learned single Judge has observed thus : “2. Mere disposal of this petition will not serve the ends of justice, because in a number of cases it is noticed that Recovery Officers , appointed by the banks with the concurrence of the Registrar of the Cooperative Societies under Section 156 of the Maharashtra Cooperative Societies Act, 1960 ("the Act" for short) are taking possession of the attached property from the judgment debtor and putting the creditors in possession thereof or some time they hold possession thereof pending execution proceedings. None of the provisions under the Act or Rules framed thereunder permit a Recovery Officer to take possession of the property from a judgment Debtor and to hold possession thereof pending public auction. 3. It is needless to mention that a property can only be delivered in possession of the auction purchaser, that too, after issuance of a sale certificate. Till such time, the judgment debtor cannot be deprived of his possession, property can only be attached and the attachment can continue subject to the provisions of the Act and the Rules under the Act. 4. Having noticed the illegal act of taking possession of the attached or mortgaged properties by the Recovery Officers, it has become necessary to arrest tendency of the Recovery Officers taking over possession of the attached property pending execution of the recovery certificate issued under Section 101 of the Act. In the circumstances, the Registrar of the Cooperative Societies Maharashtra State is directed to issue a circular to all the Recovery Officers, Cooperative Societies and/or banks, not to take possession of the attached property from the Judgment Debtor until subject property is sold in public auction and the possession is claimed by the auction Purchaser. The Registrar of the Cooperative Societies is also expected to make this legal position clear while according the permission or the consent for appointment of Recovery Officers under Section 156 of the Act.” 6. It is thus clear that unless and until the Flat is sold in public auction and possession is claimed by the auction purchaser, the physical possession of the Flat/ an immovable property, cannot be taken either from the borrower or from the guarantor. It is thus clear that unless and until the Flat is sold in public auction and possession is claimed by the auction purchaser, the physical possession of the Flat/ an immovable property, cannot be taken either from the borrower or from the guarantor. In this case, the SRO has stated on oath that physical possession was taken essentially to secure the Flat which is under attachment and to ensure that the Petitioner does not part with possession or create third party rights or interest in the Flat. 7. According to the Petitioner, he did not remain present out of fear of being implicated in a false criminal case by the Respondent Nos. 1 and 2. According to the Respondent Nos. 1 and 2 since the Petitioner did not remain present they had no other option but to seal and lock the Flat. It is not necessary to go into merits or demerits of these rival contentions but suffice it to say that in terms of the law laid down by this court in the case of Janakalyan Sahakari Bank Ltd., (supra), the physical possession of the Flat could not have been taken and the possession will have to be returned to the Petitioner. At the same time, interest of Respondent No.1 Bank will have to be protected. It is, therefore, directed that the attachment of the Flat in question will continue. The Bank proposes to sell the Flat by public auction. Obviously the prospective bidders would like to inspect the Flat. Mr. Pawar, learned Advocate for the Petitioners makes a statement that in such an eventuality, if the prospective purchasers wish to inspect the Flat, the Petitioner will not obstruct such inspection of the Flat by the prospective purchaser accompanied by the SRO of the Bank or any other Bank Officers with advance intimation to the Petitioner. He makes a further statement that the Petitioner will not part with possession or create any third party rights or interest in respect of the said Flat. Both the statements are accepted as undertakings of the Petitioner. Written undertaking of the Petitioner shall be filed within two weeks from today. 8. The Respondent Nos. 1 and 2 are directed to hand over key of the Flat to the Advocate for the Petitioner within one week from today. 9. Rule is made absolute in the aforesaid terms.