JUDGMENT : All these writ petitions since involve the similar issues and as such the same have been directed to be listed together and have been heard together and now being disposed of by this common order. 2. The writ petition is under Article 227 of the Constitution of India, wherein order passed on 28.07.2017 (annexure-5) in Civil Misc. Appeal No.07 of 2017 by the Principal District Judge, Dhanbad, is under challenge, whereby and whereunder the order dated 04.01.2017 passed in Original Suit No.132 of 2016 rejecting petition under Order 39 Rule 1 and Rule 2 has been reversed by directing the respondent no.2, the petitioner herein, not to dispossess the plaintiff to the suit to the suit premises without following the due process of law till the disposal of the original suit. 3. The brief facts of the case as per the pleading made in these writ petitions is that the petitioner bank has sanctioned the loan by keeping the property in question mortgaged by a collateral security on 17.12.2009, again having become non-performing assets a notice under Section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the Act, 2002), in the month of October, 2015, thereafter resorting to the provision of Section 13(4) of the Act, 2002 on 04.02.2016. The respondent No.1 namely Amit Pandey has entered into an agreement of tenancy on 10.10.2012 and started living in the aforesaid premises but when the notice under Section 13(4) of the Act, 2002 has been issued against the respondent no.2 who happens to be landlord of the property in question, the suit has been filed by the respondent no.1 being Original Suit No.132 of 2016, pleading therein that he is monthly tenant of defendant no.1 namely Tabrez Alam, in respect of residential building fully described in the schedule on the monthly rent of Rs.2500/-and has been paying rent regularly to him on time but without any receipt, it came to know from a notice published on 07.02.2016 in a local Hindi Daily Newspaper namely “Prabhat Khabar” in respect of the building in which he is residing as tenant of the defendant no.1, pasting therein the notice issued under Section 13(4) of the Act, 2002, the bank has appeared and filed show cause, disputed the claim of the respondent no.1 by stating that the respondent no.2 is one of the Directors of M/s Jamshed Iron and Steel Private Company Limited and has got cash credit facility of Rs.300 Lakh (Rupees Three Crore) which was sanctioned on 26.07.2013 and got secured the loan after getting mortgage of the property of the defendant no.1 and when the loanee become irregular and despite of repeated request and intimation the loanee did not pay the loan amount and then the loan amount have became NPA which forced the petitioner bank to file a suit in the Debt Recovery Tribunal, Ranchi for a decree of Rs.3,32,09,830/-against the respondent no.2 and other loanees and also proceeded under the provision of Act, 2002 and issued notice under Section 13(2) on 20.10.2013 and possession notice under Section 13(4) on 04.02.2016. 4. The respondent no.1 has also filed a separate petition under Order 39 Rule 1 and 2 read with Section 151 C.P.C. for grant of temporary injunction restraining the petitioner bank for taking forceful possession of the tenanted premises. 5. The aforesaid application has been rejected vide order dated 04.01.2017 against which, Misc. Appeal has been filed before the Principal District Judge, Dhanbad under the provision of Order 43 (1) (r) of the C.P.C. being Misc. 5. The aforesaid application has been rejected vide order dated 04.01.2017 against which, Misc. Appeal has been filed before the Principal District Judge, Dhanbad under the provision of Order 43 (1) (r) of the C.P.C. being Misc. Appeal No.07 of 2017 which was allowed vide order dated 28.07.2017 against which writ petition has been filed by the petitioner bank on the ground that there is error apparent on the face of record in the order passed in Misc. Appeal No.07 of 2017, since the interim injunction has been granted relying upon the ratio laid down by the Hon’ble Apex Court in the case of Vishal N. Kalsaria Vs. Bank of India and Ors., reported in 2016 (1) Jharkhand Bar Council Journal 434 Supreme Court. 6. It has been stated by the learned counsel appearing for the bank that the judgment is to be seen on the basis of the factual aspect involved in each and every cases, in the case of Vishal N. Kalsaria (supra), the ratio laid down in the case of Harshad Govardhan Sondagar Vs. International Assets Recontruction Co. Ltd. and Ors., reported in (2014) 6 SCC 1 , has not been reversed rather affirming the aforesaid view the Hon’ble Apex Court in the case of Vishal N. Kalsaria has made an observation in paragraph 29 that if the leasehold rights being created after the property has been mortgaged to the bank, the consent of the creditor needs to be taken but here admittedly in this case, the said lease agreement has been entered into on 10.10.2012 while the property in question has been mortgaged on or before i.e. on 25.07.2010, the date of sanction of cash credit facitlity and therefore, the respondent no.2 was required to take consent from the creditors, having not done so, the ratio laid down in the case of Vishal N. Kalsaria will not been applicable. 7. While on the other hand learned counsel appearing for the respondent no.1 has submitted that this writ petition is not maintainable under the provision of Article 227 of the Constitution of India since the same can only be invoked if there is any error apparent on the face of record and to demonstrate the same, the reliance has been placed upon the judgment rendered in the case of Surya Dev Rai Vs. Ram Chander Rai and Ors., reported in (2003) SCC 675. 8. Ram Chander Rai and Ors., reported in (2003) SCC 675. 8. It has been submitted that since the suit is going on, as such, it would be proper and appropriate to direct the trial Court to conclude the suit itself in respect of looking into the legality and propriety of the order impugned. 9. Respondent no.2 has put his appearance through his counsel who has argued that the writ petition is not maintainable, under the provision of Article 227 of the Constitution of India rather an appeal ought to have been filed against the order passed by the Principal District Judge under the provision of Order 43 Rule 1 (r) of the C.P.C. and as such the writ petition may be dismissed on the ground of maintainability. 10. Heard learned counsel for the parties and after appreciating their rival submissions, the Court has found following undisputed fact in this case i.e. the respondent no.2 has got cash credit facility of Rs.300 Lakh (Rupees Three Crore) vide sanction letter dated 25.07.2010 by keeping the title deed no.13621 dated 17.12.2009 standing in the name of respondent no.2 namely Tabrez Alam and another properties as collateral security by mortgaging it, again becoming declared to be non-performing assets. A notice under Section 13(2) of the Act, 2002 has been issued and served upon borrower i.e. respondent no.2 on 20.10.2015 and when the provision stipulated therein has not been complied with by not clearing the dues within the stipulated period as provided in the said statute, possession notice under Section 13(4) has been given on 04.02.2016. 11. The petitioner bank has also filed a suit in the Debt Recovery Tribunal, Ranchi for decree of Rs.3,32,09,830/- against the borrower and the guarantors of M/s Jamshed Iron and Steel Pvt. Ltd. and Others and Rs.1,29,76,781/- against the borrower and the guarantors of M/s New India Minerals and Others and prayed before the Debt Recovery Tribunal, Ranchi for an order of attachment. The respondent no.1 at that juncture has filed original suit being Original Suit No.132 of 2016 for decree of the following reliefs:- “(a) A decree for permanent injunction may be passed in favour of the plaintiff and against the defendants restraining the defendants, their men, agents and servants etc. The respondent no.1 at that juncture has filed original suit being Original Suit No.132 of 2016 for decree of the following reliefs:- “(a) A decree for permanent injunction may be passed in favour of the plaintiff and against the defendants restraining the defendants, their men, agents and servants etc. from interfering with plaintiff’s peaceful enjoyment and possession of the suit premises fully described in schedule of plaint and/or in any way using force to eject the plaintiff there from during the subsistence of tenancy or till an eviction decree is passed from a competent Civil Court. (b) During pendency of the suit plaintiff’s tenancy right may be protected by an order of temporary injunction. (c) A decree for cost of the suit.” 12. A separate application under order 39 Rule 1 and Rule 2 has been filed for temporary injunction, the trial Court vide order dated 04.01.2017 has rejected the same on the ground that the consent of the creditor needs to be taken before creating leasehold rights over the said in favour of any other party, having not done so, the temporary injunction petition has been rejected. 13. The respondent no.1 has preferred an appeal before the Principal District Judge under the provision of Order 43 Rule 1 (r) of the C.P.C. which has been allowed by reversing the order dated 04.01.2017 passed by the trial Court against which, these writ petitions have been filed. 14. This Court has thought it proper to answer the argument advanced on behalf of the respondents with respect to the maintainability of the writ petition under Article 227 of the Constitution of India. 15. It is not in dispute that the power conferred under Article 227 of the Constitution of India is supervisory in nature and High Court under the power of superintendence and supervisory jurisdiction has got power to look into the legality and propriety of the order under the provision of Article 227 of the Constitution of India, if the order is interlocutory in nature. The scope of Article 227 has been discussed in detail in the case of Surya Dev Rai (supra) and from its perusal, it is evident that the High Court can look into the legality and propriety of the order by testing it on the face of record and to set it right. The scope of Article 227 has been discussed in detail in the case of Surya Dev Rai (supra) and from its perusal, it is evident that the High Court can look into the legality and propriety of the order by testing it on the face of record and to set it right. The said view has repeatedly been given by the Hon’ble Supreme Court rendered in the case of Shalini Shyam Shetty Vs. Rajendra Shankar Patil, reported in (2010) 8 SCC 329 has been pleased to laid down therein regarding the scope of Article 227 which relates to the supervisory powers of the High Courts and by taking aid of the judgment rendered by the Hon’ble Full Bench of Calcutta High Court in the case of Dalmia Jain Airways Ltd. Vs. Sukumar Mukherjee, reported in AIR 1951 Calcutta 193, wherein it has been laid down that Article 227 of the Constitution of India does not vest the High Court with limit less power which may be exercised at the court’s discretion to remove the hardship of particular decisions. The power of superintendence confers power of a known and well recognized character and should be exercised on those judicial principles which give it its character. In general words, the High Court’s power of superintendence is a power to keep the subordinate courts within the bounds of the authority, to see that they do what their duty requires and that they do it in a legal manner. The power of superintendence is not to be exercised unless there has been; (a) An unwarranted assumption of jurisdiction, not vested in a court or tribunal; or (b) gross abuse of jurisdiction; or (c) an unjustifiable refusal to exercise jurisdiction vested in courts or tribunals. Further, in the aforesaid judgment the Hon’ble Apex Court has taken aid of a judgment rendered in the case of Mani Nariman Daruwala Vs. Phiroz N. Bhatena, reported in (1991) 3 SCC 141 wherein it has been laid down that in exercise of jurisdiction under Article 227, the High Court can set aside or reverse finding of an inferior court or tribunal only in a case where there is no evidence or where no reasonable person could possibly have come to the conclusion which the court or tribunal has come to. The Hon’ble Apex Court has made it clear that except to this limited extent the High court has no jurisdiction to interfere with the finding of facts. Further, the judgment rendered by the Hon’ble Apex Court in the case of Laxmikant Revchand Bhojwani Vs. Pratapsing Mohansingh Pardeshi, reported in (1995) 6 SCC 576 it has been laid down that the High Court under Article 227 cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. Its exercise must be restricted to grave dereliction of duty and flagrant abuse of fundamental principles of law and justice. It has been laid down at paragraph 47 of the aforesaid judgment that the jurisdiction under Article 227 is not original nor is it appellable. This jurisdiction of superintendence under Article 227 is for both administrative and judicial superintendence. Therefore, the powers conferred under Article 226 and 227 are separate and distinct and operate in different fields. Another distinction between these two jurisdictions is that under Article 226 the High Court normal annuls or quashes an order or proceedings but in exercise of its jurisdiction under Article 227, the High Court, apart from annulling the proceeding, can also substitute the impugned order by the order which the inferior tribunal should have made. It has further been laid down regarding the powers to be exercised by the High Court under Article 227 of the Constitution of India. The High Court, in exercise of its jurisdiction of superintendence, can interfere in order only to keep the tribunals and courts subordinate to it within the bounds of its authority, in order to ensure that law is followed by such tribunals and courts by exercising jurisdiction which is vested with them and by not declining to exercise the jurisdiction which is vested in them. Apart from that, High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the tribunals and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it, is a possible view. In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised. It is evident from proposition laid down by the Hon’ble Supreme Court, so far as the power conferred to the High Court under Article 227 of the Constitution of India that it can look into the legality and propriety of the order, if the nature of order is interlocutory and if on the face of record, the order suffers from error or order is without beyond jurisdiction. 16. Admittedly, the order impugned is interlocutory since the original suit is for permanent injunction wherein an application under Order 39 Rule 1 and Rule 2 of the C.P.C. has been filed which is the order interlocutory in nature and against an order passed by the Court on petition under Order 39 Rule 1 and Rule 2, appeal is to be filed under the provision of Order 43 (1) (r) of the C.P.C. and resorting to the said provision, the respondent no.1 has preferred Misc. Appeal before the Principal District Judge who has reversed the order passed by the original Court, meaning thereby, an order passed refusing the temporary injunction since has been reversed by the Appellate Court, implied meaning will be that there is now temporary injunction, admittedly a temporary injunction will be said to be an order interlocutory in nature and therefore, the order passed by the appellate authority being interlocutory in nature, under Article 227 of the Constitution of India will lie. 17. The contention has also been raised that instead of petition, under Article 227, an appeal ought to have been filed by the petitioner bank under the provision of Order 43 Rule 1 (r) before this Court by way of Misc. Appeal but that argument is not acceptable to that Court for the reason that if once a provision has been invoked by a party, the other party cannot again invoke a provision before the Higher Forum and further also on the ground that there cannot be any second appeal in the garb of Misc. Appeal but that argument is not acceptable to that Court for the reason that if once a provision has been invoked by a party, the other party cannot again invoke a provision before the Higher Forum and further also on the ground that there cannot be any second appeal in the garb of Misc. Appeal against an order passed under Order 39 Rule 1 and Rule 2 reversed under Order 43 Rule (1) (r) and therefore, the contention as has been raised by the learned counsel appearing for the respondents that a Misc. Appeal ought to have been filed before this Court under the provision of Order 43 Rule 1 (r) is unfounded, accordingly, rejected. 18. This Court is now examining the factual aspect of this case. 19. It is not in dispute that the Act, 2002 is special legislation with aim and object to regulate securitization and reconstruction of financial assets and enforcement of security interest Act, the Act enables the bank and financial institution to realize long term assets mange problems of liquidity, asset liability mismatch and improve recovery by exercising powers to take possession of security, sale them and reduce non-performing assets by adopting measures of recovery or reconstruction. 20. The said Act contains a provision under Section 13(2) which provides power of enforcement of security, interest and where any borrower who is under a liability to a secured creditor under a security agreement, makes any default in repayment of secured debt or any installment thereof, and his account in respect of such debt is classified by the secured creditor as non-performing asset, then, the secured creditor may require the borrower by notice in writing to discharge in full his liabilities to the secured creditor within sixty days from the date of notice failing which the secured creditor shall be entitled to exercise any or all of the rights under sub section 4. Sub section 4 stipulates that if the borrower fails to discharge his liability, the creditor will take possession of the secured assets of the borrower including the right to transfer by way of lease, assignment or sale for realizing the secured asset. 21. Thereafter, Section 14 will come which provides for making a requisition before the Chief Metropolitan Magistrate or District Magistrate to assist secured creditor in taking possession of secured asset. 22. 21. Thereafter, Section 14 will come which provides for making a requisition before the Chief Metropolitan Magistrate or District Magistrate to assist secured creditor in taking possession of secured asset. 22. Section 17 contains a provision of making an application against measures to recover secured debts, wherein it has been provided that any person (including borrower), aggrieved by any of the measures referred to in sub-section 4 of Section 13 may approach to the Debt Recovery Tribunal having its jurisdiction. 23. It is evident that by virtue of an amendment inserted by Act 44 of 2016 with effect from 01.09.2016, a new provision under Section 17 has been inserted as sub-section 4-A by which, under the definition any person, any tenancy or leasehold rights upon the secured asset, have also been provided with a remedy to approach before the Debt Recovery Tribunal. 24. The original Court in Original Suit No.132 of 2016 has rejected the application filed under Order 39 Rule 1 and Rule 2 by taking into consideration the proposition laid in the case of Vishal N. Kalsaria, wherein at paragraph 29, it has been referred “as far as granting leasehold rights being created after the property has been mortgaged to the bank, the consent of the creditor needs to be taken.” 25. The Hon’ble Apex Court in the judgment rendered in the case of Vishal N. Kalsaria has also taken note of the judgment rendered in the case of Harshad Govardhan Sondagar (supra), wherein at paragraph 21 of the aforesaid judgment, it has been laid down that no borrower shall lease any of the secured assets referred to in the notice without the prior written consent of the secured creditor and after taking reference of the aforesaid judgment in the case of Vishal N. Kalsaria, the order has been passed holding therein that save and except the process of tenancy, there cannot be any eviction of the tenant. On the basis of the aforesaid proposition of law, now it is to be seen as to whether the appellate court while reversing the order passed by the trial Court has committed error. On the basis of the aforesaid proposition of law, now it is to be seen as to whether the appellate court while reversing the order passed by the trial Court has committed error. It would be relevant to deal with the definition of mortgage, the distinction between the mortgage and pledge is that by the mortgage the general title is transfer to the mortgagee, subject to the re-vested by performance of the condition, by the pledge, the pledger required the general title himself and tested with the possession for special purpose. Thus, it can be said that by a mortgage the title is presumed by a pledge, the possession alone is parted with. The Hon’ble Apex Court in the aforesaid case at paragraph 17 dealing with the fact of mortgage of an immovable property has laid down that the right of the borrower to lease a mortgaged property is regulated by Section 65-A of the Transfer of Property Act. Section 65-A of the Transfer of property Act which speaks as follows:- “65-A. Mortgagor’s power to lease.-(1) Subject to the provisions of sub-section (2), a mortgagor, while lawfully in possession of the mortgaged property, shall have power to make leases thereof which shall be binding on the mortgagee. (2)(a) Every such lease shall be such as would be made in the ordinary course of management of the property concerned, and in accordance with any local law, custom or usage. (b) Every such lease shall reserve the best rent that can reasonably be obtained, and no premium shall be paid or promised and no rent shall be payable in advance. (c) No such lease shall contain a covenant for renewal. (d) Every such lease shall take effect from a date not later than six months from the date on which it is made. (e) In the case of a lease of buildings, whether leased with or without the land on which they stand, the duration of the lease shall in no case exceed three years, and the lease shall contain a covenant for payment of the rent and condition of re-entry on the rent not being paid within a time therein specified. (e) In the case of a lease of buildings, whether leased with or without the land on which they stand, the duration of the lease shall in no case exceed three years, and the lease shall contain a covenant for payment of the rent and condition of re-entry on the rent not being paid within a time therein specified. (3) The provisions of sub-section (1) apply only if and as far as contrary intention is not expressed in the mortgage deed; and the provisions of sub-section (2) may be varied or extended by the mortgage deed and, as so varied and extended, shall, as far as may be, operate in like manner and with all like incidents, effects and consequences, as if such variations or extensions were contained in that sub-section.” 26. It needs to refer the judgment passed by the Hon’ble Apex Court in the case of Harshad Govardhan Sondagar (supra) wherein at paragraph 34, it has been laid down as quoted hereinbelow:- “34. We have perused the aforesaid decision of this Court in Transcore and we find that in that case, the question whether the secured creditor, in exercise of its rights under Section 13 of the SARFAESI Act, can take over possession of the secured asset in possession of a lessee under a valid lease was not considered nor was the question whether there is anything in the SARFAESI Act inconsistent with the right of a lessee to remain in possession of the secured asset under the Transfer of Property Act considered. In our view, therefore, the High Court has not properly appreciated the judgment of this Court in Transcore and has lost sight of the opening words of sub-section (1) of Section 13 of the SARFAESI Act which state that notwithstanding anything contained in Section 69 or Section 69-A of the Transfer of Property Act, 1882, any security interest created in favour of any secured creditor may be enforced, without the intervention of the court or tribunal, by such creditor in accordance with the provisions of the Act. The High Court has failed to appreciate that the provisions of Section 13 of the SARFAESI Act thus override the provisions of Section 69 or Section 69-A of the Transfer of Property Act, but does not override the provisions of the Transfer of Property Act relating to the rights of a lessee under a lease created before receipt of a notice under sub-section (2) of Section 13 of the SARFAESI Act by a borrower. Hence, the view taken by the Bombay High Court in the impugned judgment as well as in Trade Well as so far as the rights of the lessee in possession of the secured asset under a valid lease made by of the lessee in possession of the secured asset under a valid lease made by the mortgagor prior to the creation of mortgage or after the creation of mortgage in accordance with Section 65-A of the Transfer of Property Act is not correct and the impugned judgment of the High Court, insofar it takes this view, is set aside.” 27. It is evident from the factual fact involved in the case of Harshad Govardhan Sondagar (supra) that the appellants have claimed that the possession of the secured asset under a lease made prior to the mortgage of the same having not been taken into consideration, the order passed by the Chief Metropolitan Magistrate, under Section 14 of the SARFAESI Act for delivering of possession of the secured asset to the respective secured creditors has been quashed. 28. In the judgment rendered in the case of Vishal N. Kalsaria (supra), the ratio laid down in the case of Harshad Govardhan Sondagar with respect to creation of lease prior to mortgage has been approved but the situation in the Kalsaria case was different i.e. the lease has been created after the property having been mortgaged and therefore, it has been held that before creating tenancy right before the date of mortgage, the consent is required to be taken from the creditors. It is in the touchstone of this ratio and the definition of mortgage, the case in hand has been examined by this Court. 29. It is in the touchstone of this ratio and the definition of mortgage, the case in hand has been examined by this Court. 29. It is evident from the order dated 04.01.2017 passed by the original Court that the temporary injunction has been rejected on the ground that there is no prior consent of the creditor before creating the tenancy, the said finding is based upon the judgment rendered by the Hon’ble Apex Court in the case of Harshad Govardhan Sondagar as also in the case of Vishal N. Kalsaria but the appellate court without appreciating the factual aspect leading to the instant case, wherein the tenancy has been created vide agreement dated 10.10.2012 while the property has been mortgaged as on 26.07.2010 which is the date of sanction of cash credit facility and it is not in dispute that vide RBI Guideline, the property by way of collateral security is to be mortgaged, where no date has been mentioned by either of the party regarding creation of mortgaged, therefore, the Court is taking the date as of the date of sanction which is 26.07.2010 which is prior to the agreement dated 10.10.2012, hence, none of the judgments rendered by the Hon’ble Supreme Court either in the case of Harshad Govardhan Sondagar and Vishal N. Kalsaria is given aid to the respondent no.1, since it has no where on record that before creating tenancy by virtue of agreement dated 10.10.2012, prior consent of the creditor has been taken, this fact ought to have been appreciated by the appellate court but having not done so, the appellate court has committed gross error. 30. Since there is error apparent on the fact of record as because the factual aspect involves in the case of Vishal N. kalsaria read with the judgment rendered in the case of Harshad Govardhan Sandagar has not been appreciated, in right perspective as discussed therefore, the said error is apparent on the face of record. 31. In view thereof, the order passed by the Principal District Judge in Civil Misc. Appeal No.07 of 2017 needs to be set aside. 32. In the result the order dated 04.01.2017 is restored, accordingly, all these writ petitions stand allowed. 33. Since all the writ petitions stand disposed of, hence, all the interlocutory applications also stand disposed of.