JUDGMENT : Mohammed Nias C.P., J. Petitioner, an Asset Reconstruction Company (ARC), registered under Section 3 (1) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the ‘SARFAESI Act’), challenges Ext.P10 order passed by the 5 th respondent Tahsildar, dated 24-10-2019. 2. The respondents 1 and 2 availed cash credit facilities from the Federal Bank Limited, and for the purpose of securing repayment of the said facilities, the 1 st and the 7 th respondents created a mortgage over the immovable property having an extent of 7.74 Ares (19.117 cents) in Re.Sy.No.160/14 Block No.12, old Sy.No.284/5 of Paininkalpara Kara, Kanayannur Taluk, Kanayannur Village, Ernakulam District, together with buildings existing or to be constructed along with other properties, as the secured asset. Since the borrower defaulted in payment of the dues, the bank assigned the financial asset along with the underlying security asset created over it with all its title and interest in favour of the petitioner under a registered Assignment Agreement dated 26.3.2013 under the provisions of the SARFAESI Act. 3. Accordingly, the petitioner filed CMP No.2816/2016 before the Chief Judicial Magistrate Court, Ernakulam, u/s 14 of the SARFAESI Act, seeking assistance for taking over possession of the secured asset. Through order dated 01-08-2016, an Advocate Commissioner was appointed to take physical possession of the secured asset. The SARFAESI proceedings were challenged by the 1 st respondent and the 2 nd respondent by filing W.P. (C) No. 32218/2016, wherein the respondents were directed to avail the alternate remedy under the SARFAESI Act. Although an appeal was carried, it was also dismissed through Ext.P3 judgment dated 04-12-2017. 4. Through Ext.P4 order dated 06-10-2017, the Chief Judicial Magistrate, Ernakulam, passed a common order in the application preferred by the petitioner and the 1 st respondent as follows:- “6. Hence the Advocate commissioner is directed to proceed with the dispossession of the property covered by the mortgage with the assistance of village officer. Petitioner is free to show/hand over the title deed to the commissioner or village officer, the Commissioner made attempts to dispossess some other property as contended in the petition. If so, the Advocate Commissioner and village officer must peruse the said document and shall clearly identify the property that covered by the mortgage deed before dispossessing the petitioner. Petitioner is free to show/hand over the title deed to the commissioner or village officer, the Commissioner made attempts to dispossess some other property as contended in the petition. If so, the Advocate Commissioner and village officer must peruse the said document and shall clearly identify the property that covered by the mortgage deed before dispossessing the petitioner. To execute the warrant without obstruction advocate commissioner is free to avail the assistance of SHO concerned along with men and women civil police officers. 7. The next contention raised is that the respondent bank has not issued 13(4) notice to take physical possession. On verification 13(2) notice is seen issued and hence there is no impediment in proceed with act of dispossession. So the said contention falls to ground. 8. In the result, petitions are dismissed with the observation that commissioner is free to dispossess the petitioner from his property that is mortgaged with the bank after identifying the same clearly with the able assistance of Village officer. Deposit 1500/ as Village Officer's batta if not remitted so far. For commission report to 10.11.2017.” 5. The Commissioner took possession of the secured asset as seen from Ext.P5 report of the Village Officer dated 24-03-2018. The party respondents filed an application before the Chief Judicial Magistrate, Ernakulam, for an investigation into the various offences alleged against the village officer and to set aside the proceedings of the Advocate Commissioner and others, alleging that instead of the secured asset, an adjoining property of the borrower was taken into possession. The said petition was dismissed through Ext. P6 order dated 25.04.2018 with the following findings:- “5. As per the commission report, the Commissioner has taken possession of the property scheduled as secured asset (item 2 nd in the petition with the assistance of the Village Officer after identifying the same. It is seen that my learned predecessor had directed the petitioners to hand over their title deed if any to the Commissioner or Village Officer at the time of taking possession, as per order dated 10.11.17 in CMP 1557/17, if they have any contention that the said property is not the one which is mortgaged. But the present petition does not contain any statement that the petitioner did hand over any such title deed to the Commissioner or Village Officer as stated above. But the present petition does not contain any statement that the petitioner did hand over any such title deed to the Commissioner or Village Officer as stated above. Now on going through the records, there is nothing at this stage which would show that the property taken possession is not the property mortgaged/secured asset. However, if at all the petitioners have got any allegation of commission of criminal offence, they have to seek their remedy under appropriate provisions in accordance with law. Hence, there are no grounds to allow this petition as requested.” 6. After taking possession of the secured asset by the Advocate Commissioner, a group of people, along with the 1 st respondent, trespassed into the secured asset, which was taken physical possession of and manhandled the security guard and damaged property, in flagrant violation of the Ext. P6 order of the CJM. On this allegation, the petitioner filed Ext.P7, registered as M.C. No. 93/2019, before the Chief Judicial Magistrate, Ernakulam, under Section 14 of the SARFAESI Act to enforce Ext.P4 order dated 06.10.2017 and to take re-possession of the secured asset. In those proceedings, the 1st respondent in this writ petition (arrayed as the 3rd respondent in M.C. No. 93/2019) filed C.M.P. No.393/2019 seeking to recall the order appointing an Advocate Commissioner, and also filed C.M.P. No. 419/2019 challenging the very maintainability of M.C. No. 93/2019. By Ext. P8 common order dated 15.07.2019, both these applications were dismissed, and the Court appointed an Advocate Commissioner to take physical possession of the property. Thereafter, M.C. No. 93/2019 was withdrawn on 02.09.2022, and the petitioner filed a fresh application under Section 14 of the SARFAESI Act to take possession of the Secured Asset, which is currently pending adjudication. 7. In the meantime, the 1 st respondent filed W.P(C) No.11829/2019 seeking a direction to consider the representation preferred to the Tahsildar, Kanayannur, to finalise Ext.P1 therein, a complaint preferred by the petitioner on 31-03-2018, making serious allegations against the Village Officer. The said writ petition was disposed of on 16.08.2019, directing the Tahsildar to take appropriate action within two months. In the meantime, the 1 st respondent filed W.P(C) No.11829/2019 seeking a direction to consider the representation preferred to the Tahsildar, Kanayannur, to finalise Ext.P1 therein, a complaint preferred by the petitioner on 31-03-2018, making serious allegations against the Village Officer. The said writ petition was disposed of on 16.08.2019, directing the Tahsildar to take appropriate action within two months. The decision in Ext.P10 order was taken by the Tahsildar based on the above direction and finding that the Village Officer’s actions were wrong and that the contention of the party respondents that their property, not offered as a secured asset, was taken possession of was found to be factually correct. 8. As the petitioner herein was not made a party to the writ petition, which led to the passing of Ext.P10 order, they preferred RP 1196/2019 which was allowed as per the judgment dated 02.03.2021 finding that the orders of the Additional Chief Judicial Magistrate which directed handing over of possession was not brought to the notice of this Court and also that the petitioner, the financial institution, which initiated the SARFAESI proceedings and who was a necessary party, was not impleaded. Accordingly, the RP was allowed, and the judgment dated 16.08.2019 in W.P(C) No. 11829/2019 was recalled. 9. W.P. (C) No. 11829/2019 was again reconsidered, and by Ext.P12 judgment dated 20.02.2025, it was held that the order passed by the Chief Judicial Magistrate on 25.04.2018 (Ext.P6 in this writ petition) had become final, and the writ petition was dismissed with costs. Writ Appeal No.640/2025 filed against Ext.P12 was dismissed on 23.08.2025. 10. The petitioner thus challenges Ext.P10 mainly on the ground that the said order was passed pursuant to the directions in Ext.P9 judgment, which was reviewed thereafter, and the writ petition itself was dismissed. It is also the contention of the petitioner that Ext.P10 order was passed in violation of Exts.P4, P8, and orders of the Chief Judicial Magistrate, which had become final. Thus, the petitioner seeks to quash Ext.P10 and also for a declaration that the said order has become non-operational on account of the order passed in RP 1196/2019 and later in W.P(C) No. 11829/2019. 11. Thus, the petitioner seeks to quash Ext.P10 and also for a declaration that the said order has become non-operational on account of the order passed in RP 1196/2019 and later in W.P(C) No. 11829/2019. 11. The party respondents filed a counter, contending that under the guise of taking possession of the secured asset, the property over which the petitioner had no right was taken over, and this objection was made by the petitioner from the initial stage onwards. It is also pointed out that the commission report filed in CMP 2816/2016 would also clearly show that the secured asset was not the property that was taken possession of. It is also submitted that they had filed a complaint, Ext.R1(4), on 31.03.2018 against the actions of the Village Officer, raising serious allegations, and the same was kept dragging as seen from Exts.R1(5) to R1(7). It is also pointed out that Ext.R1(4) complaint was to take action against the misconduct committed by the Kanayannur Village Officer, including for compensation, and was not against the orders of the Chief Judicial Magistrate as such. 12. It is further argued that the review petition was allowed for not having mentioned the proceedings of the Chief Judicial Magistrate and also for not impleading the present writ petitioner. It is also argued that just because the review petition was allowed and later the writ petition itself was dismissed, the complaint made against the Village Officer with respect to his official acts and misdemeanours cannot be given acceptance and the same has to be enquired upon and neither the filing of the writ petition nor the dismissal thereof, cannot prevent the consideration of the complaint independently on its merits. 13. It is also submitted that the party respondents have filed O.S.1090/2019 against the petitioner and the Advocate Commissioner for a mandatory injunction to direct the 1 st respondent the writ petitioner, to remove the locks put up by them in the shutter of the plaint schedule property and also for an injunction restraining the defendants from trying to take possession of the plaint B schedule property or the buildings or the appurtenants thereof. It is submitted that since Ext.P10 order is passed by the Tahsildar, based on a complaint preferred by the party respondents and though the writ petition and the writ appeal stand dismissed for suppression of facts and also for not impleading the petitioner, the same cannot be taken as a reason for discarding Ext P10 order based on Ext.R1(4) filed by the petitioner. 14. Heard Sri. Madhu Radhakrishnan, the learned counsel for the petitioner, Sri. T. Krishnanunni, Senior Counsel, instructed by Sri.C.B.Sreekumar, the learned senior counsel appearing for respondents 3 to 6, and Sri. Sreejith V.S., the learned Government Pleader. 15. After hearing the learned counsel appearing on both sides, a few undisputed facts have to be noticed. It cannot be disputed that the property situated in Re. Sy. No.160/14 Block No. 12, old Sy. No. 284/5 of Paininkalpara Kara, Kanayannur Taluk, Kanayannur Village, Ernakulam District is the secured asset and over which alone the petitioner has the right to take possession. The party respondents cannot, at this stage, have any grievance on taking over the secured asset, more so after orders passed by the Chief Judicial Magistrate’s Court concerned. It cannot be disputed that the Tahsildar cannot look into, much less observe, anything about the proceedings of the Chief Judicial Magistrate. 16. It is pertinent to note that the writ petition preferred by the 1 st respondent was dismissed essentially for suppression of material facts and also for not impleading the petitioner herein. The same was upheld in a writ appeal as well. In view of the above, that part of the enquiry conducted by the Tahsildar with respect to the matters covered by the orders of the Chief Judicial Magistrate and under the provisions of the SARFAESI Act cannot be countenanced at all. However, since the complaint of the petitioner was made as early as on 31-03-2018, nothing precludes the Tahsildar from proceeding in accordance with law, on the basis of the allegations made against the Village Officer, with notice to the petitioner herein. 17. As regards the contention of the petitioner that, instead of taking possession of the secured asset, the property unconnected with the loan transaction in question could not have been taken possession of or attempted to be taken possession of, the same cannot be disputed, more so when there is no dispute as to the description of the secured asset. 17. As regards the contention of the petitioner that, instead of taking possession of the secured asset, the property unconnected with the loan transaction in question could not have been taken possession of or attempted to be taken possession of, the same cannot be disputed, more so when there is no dispute as to the description of the secured asset. In short, the dispute between the parties in this case is on the question of separately identifying the secured asset from the other properties of the party respondents. This enquiry cannot be foreclosed as the petitioner can only take possession of the secured asset (regarding the description or extent of which there is no dispute between the parties) and nothing else. The rival contentions on the question of identification as aforesaid in OS 1090/2019 on the file of Munsiff’s Court, Ernakulam, are left open. 18. The findings of the Magistrate Court under Section 14 of the SARFAESI Act cannot be taken as one deciding on the property rights of the parties, more so when there is a civil suit pending between the parties. I hold so particularly for the reason that the dispute in this case essentially trickles down to the identification of the secured asset. Under such circumstances, Ext.P10, to the extent it dealt with matters covered by the order of the Chief Judicial Magistrate’s Court and also regarding the delivery, cannot be sustained. However, it is made clear that the quashing of Ext.P10 to the above extent will not prevent the Tahsildar from taking appropriate steps in accordance with law on the complaint filed by the 1 st respondent dated 31.03.2018, Ext R1(4), with notice to the petitioner and other affected parties, if any, in accordance with law. It is also made clear that all the contentions in O.S.1090/2019 are also left open, which shall be decided by the Trial Court, independently and on its merits. The writ petition is partly allowed as above.