JUDGMENT : Sharad Kumar Sharma, J. Though, this happens to be a First Appeal, apparently against a dismissal of a Civil Suit being Suit No. 92 of 2018, Sheet al Joshi v. State Bank of India and another branch Pithoragarh, whereby, the learned Civil Judge (Senior Division), Pithoragarh, had dismissed Suit of the plaintiff (appellant herein) on the ground that the relief sought for in the Suit was barred by the provisions contained under Section 34 of the Securitisation and Reconstruction o f Financial Assests and Enforcement of Security Interest Act, 2002 (SARFAESI Act, 2002) 2. The brief facts, which are involved in the case at hand are that the seller of t he plaintiff/appellant was a borrower of a loan from the respondent/Bank to the tune of Rs. 2,90,00,000/- (Rupees Two Crore Ninety Lakh only). The endorsement pertaining to mortgaging of the property in question, which stands recorded in the khatoni in khata No. 1 of 142 3 to 1428 fasli it shows that the property was mortgaged as against the financial assistance extended by the respondent/bank to the seller of the plaintiff/appellant by Mr. Rajesh Samant. 3. The learned counsel for the appellant contends that the appellant is a purchaser of the property in question from the borrower, by virtue of sale deed dated 28th September 2016, and as far as the issue pertaining to an extension of loan and mortgage of the property against the loan extended was not ma de aware or was in the knowledge of the appellant prior to his purchase on 28th September 2016. Consequently, when did the respondent/bank has initiated the proceedings under Section 13 of the SARFAESI Act, 2002, too was not known to the plaintiff/appellant and since the appellant has stepped into the shoes of the principal borrower after the purchase being made by him by the sale deed dated 28th September 2016, the necessity arose for the plaintiff/appellant to institute a Suit before the Civil Court being Suit No. 92 of 2018, Sheetal Joshi v. State Bank of India and others 4. In the suit in question, the plaintiff/appellant had sought for the following reliefs:- ^^¼v½ ,d LFkkbZ fu’ks/kkKk dh fMØh oknh ds i{k esa ,oa Áfroknhx.k ds fo:} bl vk'k;d dh ikfjr dj nh tk; fd Áfroknhx.k xzke vksyhxkWao lksj] iVVh thoh] rglhy] ftyk fiFkkSjkx<+ ds [kkrk la[;k 00019 ds [ksr uEcjku 926] 927] 928] 929 dks pkj uky ikWap eqBBh Hkwfe ;kfu 862-5 oxZehVj Hkwfe dh bZ-&uhykeh] [kqnZ cqnZ o vU; laxzfer djus ls ckt vk;sA ¼c½ okn O;; oknh dks Áfroknhx.k ls fnyk tk;A ¼l½ vU; U;k;laxr vuqrks"k tks ekWaxus ls jg x;s gksa vkSj ftUgsa nsuk ekuuh; U;k;ky; mfpr le>s fnyk fn;s tk;A 5. As per the relief clause, he has sought for a decree of permanent injunction as against the defendant/respondent, seeking a decree of restraint as against the interference being caused by the defendant/respondent to the suit property lying in khata No. 19, which stood mortgaged for the purposes of extension of loan by the seller of the plaintiff/appellant with the bank. 6. The argument which has been extended by the learned counsel for the plaintiff/appellant, is to the effect that the appellant was not made aware of the fact that the property having been mortgaged by his seller and without being made aware of the said fact that the plaintiff/appellant had purchased the property in question which according to him, was a bonafide purchase made by the plaintiff/appellant. But, on the basis of the fact, which has been brought on record by the plaintiff/appellant him self shows that as against the loan advance extended to the seller of the plaintiff/appellant, the respondent/bank had already initiated the proceeding by issuing notices under Section 13 (2) of the SARFAESI Act, 2002 on 28th June 2017, and thereafter an action under sub Section (4) of Section 13 of the Act has been taken by the respondent No. 2 on 30th October 2017, and consequent thereto, the property was put to for e-auctioning by the respondent. Even so much so, that after the alleged purchase when the application for mutation was filed by plaintiff/appellant before the Tehsildar, the Tehsildar has refused to record the name of the subsequent purchaser due to the pending proceedings under SARFAESI Act, 2002 which stood initiated prior to the purchase by the plaintiff/appellant on 28.09.2016. 7. Coming to the legal aspect of the matter. 7. Coming to the legal aspect of the matter. Admittedly, the proceedings under the SARFAESI Act, 2002, has commenced as against the principal borrower, who happens to be the seller of the appellant way back in 2017 when notices under Section 13(2) of the Act was issued on 28.06.2017. Meaning thereby, the mortgage, in relation to the subject matter must have been created even much prior to the initiation of the proceedings under Section 13 of the SA RFAESI Act, 2002, and once a mortgage has been created, then the property mortgaged the same could not have been dealt with by the borrower in view of non-fulfilment of the conditions of redemption of the mortgage, as contemplated under Order 34 Rule 1 and 2 of the Code of Civil Procedure. Because, once a mortgage has been created and it has not been redeemed by the creator of the mortgage i.e. the mortgage, he is stopped from dealing with the property, in any manner, whatsoever till the mortgage stands redeemed as above. 8. The foundation of the claim of the appellant is based upon a sale deed, which is said to have been executed on 28th September 2016. Under the provisions contained under Section 3 and an explanation contained therein, it is now the responsibility which is vested with the purchaser to verify with regards to the propriety and genuineness of the property, it is not suffering from any encumbrance which the purchaser is intending to purchase from the probable seller. Under the provisions contained under Section 3 and an explanation contained therein, it is now the responsibility which is vested with the purchaser to verify with regards to the propriety and genuineness of the property, it is not suffering from any encumbrance which the purchaser is intending to purchase from the probable seller. Explanation (1) of Section 3 of the Transfer of Property Act, 1882 is quoted hereunder: “Explanation I.—Where any transaction relating to immoveable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any par t of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration or, where the property is not all situated in one sub-district, or where the registered instrument has been registered under sub-section (2) of section 30 of the Indian Registration Act, 1908 (16 of 1908), from the earliest date on which any memorandum of such registered instrument has been filed by any Sub-Registrar within whose Sub-district any part of the property which is being acquired, or of the property wherein a share or interest is being acquired, is situated:] Provided that— (1) the instrument has been registered and its registration completed in the manner prescribed by the Indian Registration Act, 1908 (16 of 1908), and the rules made thereunder, (2) the instrument or memorandum has been duly entered or filed, as the case may be, in books kept under section 51 of that Act, and (3) the particulars regarding the transaction to which the instrument relates have been correctly entered in the indexes kept under section 55 of that Act. 9. In these circumstances, if the appellant without resorting to the process provided under the Transfer of Property Act, 1882 if the plaintiff/appellant makes no effort to know about the status of the property and the mortgage created against the property by the seller in relation to the property in question and despite of the property being continued to be mortgaged, if the appellant still chooses to purchase the same, in that even the appellant has to blame him self for the reason being that the proceeding under Section 13(2) to be read with Section 13 (4) of the SARFAESI Act, 2002 stood initiated much prior in time i.e. way back in 2017. 10. 10. Now, as soon as the property which is mortgaged as against the loan advances taken by the seller of the plaintiff/appellant, and more particularly, when an action has already been initiated against the seller under Section 13 of the Act prior to sale deed being executed, in that eventuality, all the proceedings would be governed by the provisions of SARFAESI Act, 2002, which contemplates a statutory remedy of preferring of an appeal before the DRT under Section 17 of the Act. The Suit for any relief in relation to the property mortgage d or in relation to the property which is subject matter of proceedings under Section 13 (2) and 13 (4) of the Act, would not be maintainable, because of the bar created by Section 34 of the SARFAESI Act, 2002, which is quoted hereunder:- “34. Civil court not to have jurisdiction. —No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which a Debts Recovery Tribunal or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993).” 11. Even the Hon’ble Apex Court has consistently in various authorities had deprecated the actions taken by the High Courts by interference in relation to the mortgage d property, which are subject matter of the SARFAESI Act, 2002, by avoiding the proceedings which is statutorily created under Section 17 of the said Act on approaching the High Court. In the Suit in question, which was preferred by the plaintiff/appellant, Issues were frame d and Issue No. 1 was framed to the effect that, “as to whether the suit would be barred by the provisions contained under the SARFAESI Act, 2002” and “whether the Civil Court had jurisdiction to deal with the subject matter of the Suit”, which was the mortgage d property by granting a decree for permanent injunction. 12. 12. The Issue No. 1 had been decided against the plaintiff/appellant on the ground that the Suit itself was not maintainable on account of the specific bar created by Section 34 of the Act and consequently, the Suit was dismissed after taking into consideration the proposition as laid down by the Hon’ble Apex Court in the judgment reported in 2014 (1) SCC 479 , Jagdish Singh v. Heeralal and others, which has considered the impact of Section 13 (4) to be read with Section 17 and its effect on the Suit before the Civil Court on account of the bar created by Section 34 of the SARFAESI Act, 2002. Considering the aforesaid aspects, the Issue was decided against the plaintiff/appellant, against which the present First Appeal has been preferred by the appellant. Paras 24 and 25 of the judgment as rendered in Jagdish Singh’s case (Supra) read as under: - “24. Statutory interest is being created in favour of the secured creditor on the secured assets and when the secured creditor proposes to proceed against the secured assets, Sub-section (4) of Section 13 envisages various measures to secure the borrower's debt. One of the measures provided by the statute is to take possession of secured assets of the borrowers, including the right to transfer by way of lease, assignment or realizing the secured assets. Any person aggrieved by any of the "measures" referred to in Sub-section (4) of Section 13 has got a statutory right of appeal to the DRT under Section 17. The opening portion of Section 34 clearly states that no civil court shall have jurisdiction to entertain any suit or proceeding "in respect of any matter" which a DRT or an Appellate Tribunal is empowered by or under the Securitisation Act to determine. The expression 'in respect of any matter' referred to in Section 34 would take in the "measures" provided under Sub-section (4) of Section 13 of the Securitisation Act. Consequently if any aggrieved person has got any grievance against any "measures" taken by the borrower under Sub-section (4) of Section 13, the remedy open to him is to approach the DRT or the Appellate Tribunal and not the civil court. Consequently if any aggrieved person has got any grievance against any "measures" taken by the borrower under Sub-section (4) of Section 13, the remedy open to him is to approach the DRT or the Appellate Tribunal and not the civil court. Civil Court in such circumstances has no jurisdiction to entertain any suit or proceedings in respect of those matters which fall under Sub-section (4) of Section 13 of the Securitisation Act because those matters fell within the jurisdiction of the DRT and the Appellate Tribunal. Further, Section 35 says, the Securitisation Act overrides other laws, if they are inconsistent with the provisions of that Act, which takes in Section 9 Code of Civil Procedure as well. 25. We are of the view that the civil court jurisdiction is completely barred, so far as the "measure" taken by a secured creditor under Sub-section (4) of Section 13 of the Securitisation Act, against which an aggrieved person has a right of appeal before the DRT or the Appellate Tribunal, to determine as to whether there has been any illegality in the "measures" taken. The bank, in the instant case, has proceeded only against secured assets of the borrowers on which no rights of Respondent Nos. 6 to 8 have been crystalised, before creating security interest in respect of the secured assets.” 13. The provisions of Order 41 Rule 11 CPC gives ample of power to the Appellate Court to dismiss an Appeal even without sending notices to the opposite side or to the Court below. In those circumstances, where the Appeal does not involved any triable issue, and where keeping pendency of lis would be a futile exercise, because the dismissal of the suit h as taken place on account of the competence of the Civil Court to deal with the matter and thus in those situations where the Suit itself is barred and in that eventuality, if the suit is dismissed, the First Appellate Court has got a power under Order 41 Rule 11 CPC to dismiss the Appeal. Order 41 Rule 11 is quoted hereunder:- “11. Order 41 Rule 11 is quoted hereunder:- “11. Power to dismiss appeal without sending notice to Lower Courts (1) The Appellate Court, after sending for the record if it thinks fit so to do, and after fixing a day for hearing the appellant or his pleader and hearing him accordingly if he appears on that day, may dismiss the appeal without sending notice to the Court from whose decree the appeal is preferred and without serving notice on the respondent or his pleader (2) If on the day fixed or any other day to which the hearing may be adjourned the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed (3) The dismissal of an appeal under this rule shall be notified to the Court from whose decree the appeal is preferred. [(4) Where an Appellate Court, not being the High Court, dismisses an appeal under Sub- rule (1), it shall deliver a judgment, recording in brief its grounds for doing so, and a decree shall be drawn up in accordance with the judgment.] 14. In the case of Purnima Bathla v. Uttarakhand Gramin Bank and others as decided on 14.05.2019, this Court has held as under: - “7. That as against the resorting to the proceedings under the Act, the Civil Court will not have any jurisdiction to entertain any suit or proceedings in any matter, which the Debt Recovery Tribunal or the Appellate Tribunal is empowered to exercise their powers under the Act of 2002. Meaning thereby the provisions contained under Section 34 specifically even creates the bar on the entertainment of Suit, what to say about adjudicating it on any other issues, which involves an interpretation to the notice issued under Section 13(2) read with Section 13(4) of the SARFAESI Act, 2002. 8. This Appeal since involves an exclusive determination of a legal issue regarding the bar of maintainability of the proceedings of the suit in view of the statutory bar created by Section 34 of the SARFAESI Act, on account of which the Suit of the plaintiff/appellant had been dismissed, this Court is of the view that this First Appeal deserves to be dismissed by invoking the provisions contained under Order 41 Rule 11 of the Code of Civil Procedure. 9. 9. As far as the implications flowing from Section 34 of the SARFAESI Act, 2002 is concerned, it cannot be disputed that as against the proceedings which are drawn under Section 13 of the SARFAESI Act, 2002 or under any other provisions contained therein, the jurisdiction of the Civil Court had been absolutely barred under Section 34 of the SARFAESI Act, 2002 it even restrains the entertainment of any Suit or proceedings, what to say about the trial of it. In such an eventuality, where the implications of Section 34 is not in dispute between the parties and further when it is not disputed that the proceedings which were put to question before the learned trial Court were emanating from the provisions contained under Section 13 of the SARFAESI Act, 2002, in such an eventuality, Order 41 Rule 11 of CPC will come into play where the learned Appellate Court, while considering the matter when the Court comes to a conclusion that the Appeal deserves to be dismissed, since it has no merit based upon a bar, which is created by law. Hence, at the stage of admission itself, the Rule, contained under Order 41 Rule 11 of CPC will apply before the Appeal is admitted for its hearing. 10. This Court, while considering the implications of Order 41 Rule 11 of CPC was conscious of the fact that the judicial discretion provided under Order 41 Rule 11 of CPC, ought to be utilised sparingly, but it could be taken into consideration that in exceptional cases, where the admission of an appeal or hearing of an appeal at a later stage, after its admission would ultimately result into its dismissal due to a bar created by law on the maintainability of the Suit itself, the provisions of Order 41 Rule 11 of CPC could be applied by the learned Appellate Court. This is more important from the view point that as far as the instant First Appeal is concerned, there is no serious question of facts, which is required to be considered or controverted by the parties and hence in the light of the ratio as laid down by the Hon’ble Apex Court as reported in AIR 1973 SC 218 , Umakant Vishnu Junnarkar v. Pramilabai and others the Appeal arising out of a triable issue should not be dismissed summarily. “9. “9. We felt that in the particular circumstances of this case it was not necessary to consider the larger question raised by Mr. Bal that in no circumstances can a High Court dismiss a first appeal summarily without reasons. 10. It is enough to state that, as pointed out by this Court in Mahadev Tukaram vitale and Ors. v. Smt. Sugandha and Anr. an appeal raising triable issues should not be summarily dismissed. Though a fairly large volume of evidence, oral and documentary, had been led by the parties, it was mentioned to us, particularly by the learned Counsel for the appellant, that he proposes to rely only on very few items of evidence on record. We also felt that both sides were anxious that a very early and should be given to this litigation and that the matter should be disposed of by this Court itself on merits.” Meaning thereby, the summary dismissal of an appeal under Order 41 Rule 11 of CPC is not barred under law, more particularly, in the present circumstances of the case, which entails pure determination of a question of law about the maintainability of the Suit itself.” 15. An identical controversy cropped up before this Court in First Appeal No. 81 of 2019, Purnima Bathla v. Uttarakhand Gramin Bank and others, wherein after the initiation of the proceeding under Section 13 of the SARFAESI Act, 2002, a Suit was preferred and in the said suit, a preliminary issue was sought to be adjudicated by invoking Order 7 Rule 11 (d) of CPC, on account of the bar created over the maintainability of the suit under Section 34, and considering the said impact of Section 34, this Court, after considering the ratio, as propounded by the Division Bench of Allahabad High Court in a judgment reported in 2005 (60) ALR 7, Moti Lal v. Bhagwan Das had dismissed the Appeal. “11. There can be no dispute that the present day situation demands that every possible effort should be made to reduce arrears of litigation. There can also be no dispute that irresponsible, frivolous and mala fide litigation must be weeded out at the earliest. “11. There can be no dispute that the present day situation demands that every possible effort should be made to reduce arrears of litigation. There can also be no dispute that irresponsible, frivolous and mala fide litigation must be weeded out at the earliest. In the case of T. Arivandandam v. T.V. Satyapal reported in, AIR 1977 SC 2421 : 1978 ARC 213 the Supreme Court laid down that an activist Judge is the answer to irresponsible litigation, which must be 'nipped in the bud'. To quote: "We have not the slightest hesitation in considering the petitioner for the gross abuse of the process of the Court repeatedly and unrepentantly restored to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsif's Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful - not formal - reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order VII, Rule 11 C.P.C. taking care to see that ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searching under Order X C.P.C. An activist judge is the answer to irresponsible law suits. The trial Court would insist imperatively on examining the party at the first hearing so that bog us litigation can be shot down at the earliest stage." In keeping with the above principle of law we are of the considered opinion that Order XLI, Rule 11 C.P.C. for the appellate Court has been enacted for the same purpose and object as Order VII, Rule 11 C.P.C. is for the trial Court. The only difference being that Order VII, Rule 11 can be invoked at any stage, i.e. even after summons have been issued and the defendant enters appearance; while Order XLI, Rule 11 cannot be utilised after issuing notice. 12. The only difference being that Order VII, Rule 11 can be invoked at any stage, i.e. even after summons have been issued and the defendant enters appearance; while Order XLI, Rule 11 cannot be utilised after issuing notice. 12. A regular first appeal from a decree filed under Section 96 C.P.C. is also subject to Order XLI, Rule 11 C.P.C. Therefore, we have no hesitation in holding that even an appeal under Section 96 C.P.C. must be heard and carefully scrutinized by the appellate Court at the threshold stage of Order XLI, Rule 11 C.P.C. and it is the duty of every appellate Court to dismiss even after regular first appeal under Section 96 CPC at the stage of Order XLI, Rule 11, if it has no merit and does not deserve admission. The only rider in such an event would be that the appellate Court will have to record its reasons with regard to such of the grounds taken in the memo of appeal as have been pressed during arguments. We appreciate that this dismissal may not be possible in an appeal where the question of appreciation of evidence is involved and the record of the trial Court is not available before the appellate Court. But even in such situations, at least where the appellate Court is located in the same district as the trial Court, the trial Court's record should be summoned for the hearing under Order XLI, Rule 11 C.P.C. Before the 1999 amendment in C.P.C. (enforced w.e.f 1.7.2002), Order XLI, Rule 11 contained the words "after sending for the record if it (appellate Court) thinks fit so to do". After the said amendment, these words are not found in Order XLI, Rule 11, but we are of the opinion that this does not preclude the calling for the record as there is no prohibition either expressly or by necessary implication. Procedure is hand-maid to justice. In matters of procedure, what is not prohibited expressly or by necessary implication, is permissible if it advances the cause of justice. 13. Order XLI, Rule 11 C.P.C. is a mandatory provision of the Code of Civil Procedure. No alleged convention or practice can be permitted to over-ride the Statute. Accepting the appellant's submission would amount to holding that Order XLI, Rule 11 does not apply to appeals filed under Section 96 CPC.” 16. 13. Order XLI, Rule 11 C.P.C. is a mandatory provision of the Code of Civil Procedure. No alleged convention or practice can be permitted to over-ride the Statute. Accepting the appellant's submission would amount to holding that Order XLI, Rule 11 does not apply to appeals filed under Section 96 CPC.” 16. The Hon’ble Apex Court in its judgment as reported in AIR 1972 SC 1932 , Mahadev Tukaram Vetale and others v. Smt. Sugandha and another in its para 4 has held as under:- “4. We have heard arguments from the counsel for the parties. In our opinion the appeal did raise triable issues. It may be noted that Dadu was literate but the will does not bear his signature. It purports to bear only his thumb impression. The reason given for not signing the will was that Dadu on the date he executed the will was quite old and therefore his hands we re shaking and consequently he could not sign the document. As Dadu is not proved to have put his thumb impression for any other document it was difficult for the first defendant to prove that the thumb impression in question was not his thumb impression. On the date the will was executed Dadu was admittedly more than 80 years old. Six witnesses are said to have attested the will. Out of them only two have been examined. One of the witnesses is Dr. Vaze. We have gone through his evidence. After going through his evidence, as well as examining the other circumstances of the case we think this is a case which the High Court should not have dismissed summarily. We will not be justified in deciding any of the contentions urged at the bar at this stage. They have to be gone into by the appellate court.” 17. In view of the aforesaid fact and the backdrop which is involved in the instant case, this Court while exercising its powers under Order 41 Rule 11 of CPC, holding that there is no triable issue to be decided by the First Appellate Court on account of a statutorily legal bar created by Section 34 of the SARFAESI Act, 2002, the First Appeal is accordingly dismissed. However, there would be no order as to cost.