Smt Y Lalitha Holla vs Recovery Officer on 18 July, 2008

[Cites 5, Cited by 0]

Karnataka High Court

Smt Y Lalitha Holla vs Recovery Officer on 18 July, 2008

Equivalent citations: AIR 2009 (NOC) 115 (KAR.) = 2008 (6) AIR KAR R 388, 2008 (6) AIR KAR R 388

Bench: D.V.Shylendra Kumar

zeuw es maismsm msii owe? me mamrmm men mam" as mmmam man mm. W mmmmm  W

 

5
Nos 42 and 42/}, Bull Temple Road, Banga1ore--4,
wherein, it appears, a hotel by 
Hotel/Dwaraka Lodge was being 
sought to be soid in public  f;   
itself was conducted tilt-iugijl V 
bank, who is an official  cgoiiieniiment in the
rank of an  isideputed to the
bank and  yfvoulii'   in the bank as
the recop*e:;'3<p__  recovery officer in
fact conchxcuteci   V16--2--2OO4, in which
auctiongspﬁze  to this writ petition. - a
private   to have purchased the

 " oﬁ'eAf'1'ng._ss.price of Rs 41,04,000] --.

   auction purchaser ﬁgures as ﬁfth
~p respondent to this Writ petition, the recovery officer

'V V' is impieaded as first respondent, the joint nirgstrar of co-operative societies, who functions as a w.'Vs§:atutory func'€ionary as registrar under the Karnataka _,........»: an-calms! WUIV'Wl"'Qlﬂl\5 V. m-.m-u.-mmmm mam" 1.uurtis..e2;r K.A§{Nﬁ%"i"Ai(A H56!-5 COURV £3? KARNATAKA HIGH COURT OF KARNATAKA HQGH COURT OF KARMATAKA HIGH CCDUE 12 been held in respect exammaﬁon of the appﬁcegtions even in terms of the directions issued by this 'brder dated 7-12-2005 in WP No 1;1.934 ormos;ana§s;ha:'me joint registrar, who had adjourned' it 2006, without even i.ih__e ' simply accepted the version of p'respond.eni: who has no jurisdiction to enterteizi of the nature and the appeal in terms of application for setting aside was not order has come to be pasdﬁd" petitioners and even otherwise the pvorderis" bed oﬁe not complying with the directions by in the earlier round of litigation and V to the provisions of Section 101 of the Act read sizitiiﬁuie 33(4) and (5) of the Rules. V " iisThe petitioners have by drawing comparison to the provisions of Ruie 38 with Grder: XXI, particularly Rules H 88, 80 and 96 of the Rules, have contended that the l..MW......A HIKE ...-mumu«snn nzmn %..J.J%.Ji"(A'iA n.£.;¥;,:|:!' KARNATAKA ﬁiﬁﬁé QQURT OF KAQNAYAKA HEGH emm" 0? KAQNATAKQ WGH COURT OF KARi%.§&"ETA.§(ﬂ¢. HEQEH CQUR 14 proceedings relaﬁng to the auction sale'; the consequential proceedings for putting in possession.

15. The respondents have entered appearance Ashe M Kumbarageﬁmath; 4_ V V bbleader appears for respondents 1 irhe'~hf'1AA15é1;»--.'respondent-auction purchaserfis :3;ep;~ese1i§eEi V'i'v1""'S Purushothama Rae, on behaii of fiwha» ﬁled power for this respondent, . Au ' L'

16. Statexneme of has been ﬁled on behalf of bthe V.responrier1"t-aucﬁon purchaser, who quoted e;teV::vA"_V.nnexure--R1 to 10. An additional has also been placed before the court in ' ' ~ 1 ' ~ . the cou1'ee«:'of arguments.

behalf of the respondents 1 to 4 While no V ""V.se]§arate statement of objections has been ﬂed, the 3.7 round of writ litigation by the very petitioners aririthat the E prayer having not been ganted, it Cannot again. tirade x' K'"'93 K 'N?' K i my \'-M?' w' rm :;

Order I} Rule ''2 CPC; ther.e' of _f'1?1€ execution proceedings in the-».eariier 'writ: "petition filed by the very petitionersﬁ T .t.hati {.9'the-.';d:i1*ection was only to consider the_:app1ioations arms piesent petitioners as at Annexute'-I4'«.__Vimr§i t3;1at~ writ' petition and if the execution .p1"oeeedih§s. had" with even during the pendency of the abokeiw;9itoo__jjetition, no exception can be taken, as therewas no of the award in the earlier writ that the oibjestion raised to the manner of takillg ;jossr:ss'ion«,_of..ﬂ'ie 'p1'opert§; even by dispossessing tenants, 2 oaniiotbe heiaifiitizat the instance of the petitioners, who are " tenants and the tenants themselves have not eompiaéned; that the claim that there were as man}? as 18 ~tenants is not supported by any material on record; that A " " the allegation of collusion between the bank and the ;otm*° %i:;a:zaaara%ta area ai:::t:aw:.jt%.Aa::;%'i\=;; maaaeatta was eotzar ea eaaaaraaa migétwﬁ eaeam an mmwa subject matter of writ of eertiorari in th_is..pe'titior1;.;that relief sought for is barred oi' %%§€}?d:<% 2 1 are not entitled to seek restoration at this poliatlof time. The ﬁfth respondent has also disputed have suffered loss of Rs 25.00 fo,rei§:1Ie~ taking of possession and v of,:I};e*v'l_l:'strL:etL1re' J therein.

24- While it is goverxt1r1ent had the power and Ae.uthori.tyf'_ to of time for of the sale havirrg inoti. earlier litigation, it is not';vv_notarll to petltioriers to challenge the very eor1f1rr;;1at;ion"of the present case and therefore the eerespoilderit has prayed for dismissal of the writ . ' 2 g3e£it'ionsfit}1 costs.

" betekgouxld of such factual pleadings and AA legéL'.,_.l :(3011t€I"1lZ.iOI1S urged, the learned counsel for the " -pe;rties have addressed arguments. I have heard Sri C B F Srirlivasan, learned counsel appearing for the petitioners, M / s Rameshehandra and M S Purushothama Rae, a.,a.,a:.s- aeem;t;tt2te We at egeemmita tees t:::etm* es Kmtteteea tees etiatet itaeewaea we-set éitﬁtgiisgt" oe e'.3t;e«t t;:t:sat.' 2'7 petition, and also the objections filed to the vi;ritei'l0c11toI'y applications as contained in para--3, to the movables of the judgment de'_Qtor__had_' 1 the recovery oﬁicer, but was it ﬂwasii./Iound'A "

that the value offered toV_th.at iiiovahle was Rs 35.00 lakh as agaitlst tlietotalliability. 45.00 lakh and urges this a"s..V:i'a.. to hold that the petitioners ytfere oiﬁcer has not realized eXCltis_iVe_ belonging to the jticigzttteiits.ide't:tors.,_1" looking at the sureties' immovable and the manner in which the propert3,%"w_as» sold"ai1d' taken possession on the very day of tsale-.,_inciioates a very clear bias on the part of the i 4Voi'ti§.:er, who, it is alleged, acted in collusion with i A icresporldent to the detriment of the petitioners and AA Vjhadvvtiiirown to winds all procedural requirements, violated V' statutory provisions and in fact took law into his own hands and dispossessed even the tenants, who were otherwise reqtlired to be not disturbed, but only symbolic mmzecgi we ma>w'Me.aM=%:m MEWM §é€}£§tE§§?%§tzﬂ5W.&¥{& MEQM é'L.7€;.Z%§m" Mf&RM&Z§%%t% E*"§§5£43§"°E ﬂ£}ii.§§%fﬁ"° Q?' §""%3§ii:§§**"'ii ﬂﬁiﬁﬁﬁﬁf W? Kt'3§§3E'étfi't"§2=%i€ﬁ% ¥§*>%§%'Z&§"*% emtm 28 possession delivered under Rule 38--A(80(c) of Ve't1:rie_V_Ru1es, which reads as under:

(3)

(CI) (1?) (0) The transfer of property '4 " = (5) shallbe ejfected asfe'llows.* ._ -:4 .

Xxx Xxx Where the. property- is ..the possession of at tenant"er-- ot'3f_ze;r' ;j9e'is§J!1"entitled to hold the same by Vtitle.--'«ac:c;--i;£red before the ciu'-3 date""ef..i:,=sue'e._of a..eertiﬁcate under or the Deputy V "~Cd;tnmissipner erfj the registrar, as the ecagse 'may5.E:.e,' order delivery to be "'V..V_r"zw:s;ie 'ditaircirig a copy of the 'A ' * ?.seerft'Qfieate«V..§Jf transfer of the property to V tP:ej'$_ocieiy_ some conspicuous place on the ' propefty and proclaiming to such per.:~:_on_ " Iqy beat of drum or other ».eu'stomeJy mode at some convenient that the interest cf the defaulter has been transferred to the society.

dispossessed the tenants by throwing them u put gjfiysicaligi and their articles, in a highhanded mazmer, also demoﬁshed the building on the very day ané such action clearly amounts to a biased, highhanded actien on the part of the recovery oﬁicer to faveur the ﬁfth ®('(,.

%*\§§iZ;'i§"i ﬂffﬂiiﬁm" gig Zﬁfzéiftﬁm' {ii iii @§Tﬁ¢ﬁNi5Iéf§li°§a§%i'.¥§:t §iA=%§5' 29 respondent; that the arbitrary manner the statutory provisions under Rule 38 have §.beeIi.i'%:e:§e're.ised alse vitiates the entire proceedings beiriigﬁre Viviolation' »of _ the Articie 14 of the Constitutiori indian

30. Sri C B Siiriivaszimii' §eaz:ned'_2iieo'Ln'isel for the petitioners also S1}.V'1ZA!.4Ijﬁ}'{S ijhait. ii'--1;i1e"direction issued by this court in theA.earlier..1fo_und_ of \;il?rit'*~V1iti*§gation by the very petitioners; v§*iiez*ein fact has kept all Kﬁtiiiwifiﬁiﬁlﬁ ieiiﬁiii ﬁiﬁim? $3'? €31 questions being for examination and rgassnng ofVp.3;epe'1*~t.o"rder that having not been complied with by vvery to whom the ciirections had issued v.;i3'}'..iiI1iS'VCOt1Tt, While there is riomcompliance ' with t,1A1e.%d_iiree_tjons issued by this court and to this extent 'there on the part of the respondent-authorities girooeedirigs of the first respondent While does not ~ Aisiibstitute for a compliance of directions issued by this eotirt, the action. on the part of ﬁI"S[ respondent being @/ 34 bank had not been paid the amount payafo'leii~.by the judgment debtors; that this court not any liberty or leave in favour of the. petitioners'.';Vw'h'i§eA.Vpass'iné= orders in 'WP No 12984 of 2003, each of.those:re1iei"1Whicn' "

had been prayed ti1ereiziiari'dV_notAhgraxited-.:aiid"W1'1ich coiild have been prayed and nQt"prayed_ear1no1:v«.1)eVv'sought for in' the present Writ petition '¢':)--}f]\i'I"LI:';1(3 emanating from the provisions of and therefore urges that it is " ._tfie::'iv;i}e£itioners to question the Aisaieeertificate or handing over of possession in 'fai:oi1r_:of.tjae ﬁfth respondent.

it 'It is sabxnitted that any order passed under mwwmﬁ we rwaswzisgaaa WHWM E%In&§%N.!i%f'§'A§<i& %"§E§f§}§"% estate" ieewmzemm Métﬁﬂ C-'§§§»,é5§;f?"§" Q?' %§%%iN.$7%?%'}%E{z3k §**§§if."§5°*§ QQDWRY $3? %£,M~'§Mﬁ2x§"§"t%{e%5% f§~*Ei'i,"%§"§ ﬁéiﬁiﬂiﬁ :ofAct read with Rule 38 of the Rules can be of an appeal under Section 106 of the .. been rightly observed by the second §oin'£ registrar and therefore also this sfzrit yetitioniishould not be entertained.

transaetioza or for restitution of the property, of the petitioners and therefore prays for .t11e WI'it petition. In S{1pp0ﬂZ.,. of this"'si.'1bi9m'ssior1, K Purushothama Rae has placed reli;=.ihce'~or1_t1;eV' (tie-eision of" "

the Supreme Cou1t"V..t:t,:m~t __ V S AmND (1)) SADGURU SARVANAND 3210 ms V3'.~[g2oo;'§ip:r4Nsc 995 127m my 2008]. P'or_the eounsei for the fifth V' of the order at lttiieed by this court, as it is opetnto pursue the appea} under Section 106 ofuthe " « tuzwwéttt am?» t~%,$«%ttt\§'.¢i%.§,s%.t%7t$?t §'"§§§;§3§°"t *5J§S%..'Z%'?...§ t*€.ﬁ%.%7€:?%§§3t"?%§t§§{§5%. §"-%33*<'*§§I»'5§*% €§.?€§1U§W' Q? %.%t%?%%£«"3*€§';;@t§<;I.i% E~%£~it'§"%z§'"E ﬁﬁﬁwtﬂ" €33; ¥€'.&%?\§§3J%7£@§€.é'~%« %*t'E€;.?E**§ EZWMEQ'? GS" %%%ﬁE'%£i*é.,"E'Z£'?t§'§.z«'x 13'~%§§?'$§"*¥ ﬁ€l§t..§§"%i"E . ' ;S:iVJE'1t:1_r't3.s;o§ot¥_1eIna Rao has also submitted that the vvppetit'tio:1'i.e::'s 'p'.:=.I5ona ﬁde, for the reason that the have avoided the sale transaction going t-pyvrnaking payment of the deeretal amount while ehoose to deposit the deeretai amount before the recovery officer and did not seek for setting aside the sale iii ii W P imiiiﬁ 3% 37 in terms of Rule 38(4) of the Rules, are now estopped.._fr.om approaching this court for reiief in the jurisdiction, particulariy when the ._o0r1(iiiet " »rr3tV'_'_bo2v{§i' V' ﬁde and have not deposited §>*iEi?v§~§ the reoovery officer, and everi..__tii1A date, .t11e_§je1itioi"1ers':have'' ' not deposited the deeretai t:he:*efore~ eeurt cannot interfere in the matter,

37. in so action on the part oi' OfﬁC€I' in evicting the tenants E33': AVVit'iJii"1j,=.:~>,i%:=,g,1»>1';-5,;r.Vi_'iiispossessing them, whereas the Rules ciid physical dispossession but oni};§':~' being given to the auction .,:st2_1)mission of Sri Purushotham Rao, learned ﬁfth respondent submits that the ioeing not on the part of the tenants, who if at ~ dispossessed and if the aggrieved person is not Aiaeifore the court, no notice should be taken of this contention, particniarly for invalidating the action for :i'Z§i§.§§%"§" @§§%"'= W$.&i*3%t:5%."i".$%a§&"'-iiﬁ iiiﬂﬁ ﬁiiﬁﬁﬁﬁf? We wVm~I'~?&v».>t'8t% M-31¢" mMe;uwmM1e.m rt%'<s;:v'é'% §€l£'»':»§'<<'iE*@ﬁQ°§".e&E{£i% ﬁ'~%§{§3M {L'Z'€£Z%%t§§W ﬂit' Kﬁtﬁtéﬁﬁﬁﬁﬁ E"§§$e§r§ ﬁf.'%%t.:¥R"E" %Z:%§'* §{i'%§%§%'.§$t'§';~%§'€£t §**§%§€§=H {:€}%.§§3§"§" ﬁt? §~{.§?*e§?t§'*é§?£§J;$i'tE*§§$'?%e §~§.%€Z}§§"E ﬁ§§'§§§,£%%E'% 38 taking possession of the property on the app].i..cation made by the auction purchaser for putting

38. Sri Purushothama Raoiﬁalso to the present situation, provisions oi'n$e~ctionV.e'.1'.3§v"or the Contract Act are not thatthe bank had not gi'Jenr_ :. i had been offered by the had chosen to enforce which could fetch bette;f___nrice of the decretal amoéttnt; L"Iativ'.v,»_ﬁti*1ere is no discharge of the surety' and buiit up on the premise that §_%ections 134 of the Contract Act disentitie the ' Vioiﬁrst-.respoVnd_ent recovery oﬁicer to put the property of the " .si:retjV the property of the petitioners herein to auction saio is.._not a tenabie argument.

it 39;: Appearing on behalf of the statutory respondents i.e. respondents 2 to 4, Ms Asha M Kumbaragerimath, iearned government pieader would very vehemently urge :nam" t:::a>:- ztaaiziigaraim i~itt§§~§ t:tma*§f¢ai»f?§ maaataiezit iimit trtitiat ea: i;tta.iaata§<a tttéttiat ea: :<:aWmti«;a atttia §ﬁtI}ti&"F titan ttitiai 39 that the writ petition is not tenable; that the peﬁtione:t3.._ have to avail of the statutory remedy by way of . under Section 106, which is an efﬁcacioéns all actions taken by the second or 7f a1} in consonance with law; that-tiiere iano. "even in the action of the first reco3fe1"yﬂ oﬁiceii; that there are no violations even of a substantial pmvigitzn; not tenable and iiabie to be

40. LeaI'i3._ed._ gos%ei::1nient«vi,}:T§ieadei*, with reference to the government 243 CLIVE 91 dated 4»-5~ 4.1.994, plijiﬁiished Kamataka Gazette, Extraordinary, issued by the state government in exerHe'is§ie*--of "under sub-section (5) of Section 2-A of the jp,ai*ticL1iar1y the power delegated in favour of tlief asisistant. regstrars appointed as recovery oﬁicers V" Rule 441 of Karnataka Civil Service Ruiea, deputed financing bank, would point out that the power cwweee we mmiwraewssmzilm Mamet t.m%..t'£%f E>*"i§€;"§%iW§ ﬁfﬂtﬁwi" we l{ﬁr%%l"*«%ﬁWﬂ%€ﬁa %§§¢TE§§=*E Qﬂtﬁﬁik me W%&Nﬁ%§l%i~€r% Emiiiﬁiri i;T;".€I.l?t.§%'t"i" £3? §'~'i;£3%«§%i7'*q§§isi?%i7§;i3tE¥%i"}& Eeiiiiiti ﬂﬂitiﬂi 40 exercis able in terms of Section 88, 89~A, 100, 101, 103-8 cf the Act and also nnder '--li'%i'§"{l.i"i>}{a), 38~A, 45, 48, 49 and 49~C(2).:of»t3:ie delegated in favour of the "st " J happens to be function bank and therefore' is tlf:e"recovery*'AoiTicer who acts as the assistant petitioners have deliberately « up the functions of the assiisjtant as recovery 0fﬁCCI' as usgioﬁaegiis as first and the fourth built on the premises that the ., ﬁIst"°;'e_spondent«recovery officer lacks jurisdiction to powers of the assistant registrar is the first respondent recovery cﬁicer is assistant registrar also, functioning as the .A vreciovery officer for the purpose of the bank and he has not the power of recovery officer in terms of the statutory provision, but also the power delegated in his favour in terms of this notiﬁcation anti therefore submits that all §"§§€Z§i*i street @533 iiitﬁrévi ﬁiﬂiﬁgi $223?' t*i;iiiI§§}-iii ﬁiiiiﬁﬁl m...Mm:.;a %»:s~§"- sxiestisaﬁtiiﬁtitst Witséeri %;;i;%%§W Eﬁﬁﬁwﬁiﬁtitﬁt ?>*§§ﬁ§§%°% €§€?$%§§§%?"l'?" §€ﬁ;.¥§§%¥ﬂ$¥ﬁ?K;£% 41 actions taken by the first respondent recoverypofﬁcer is also Within the powers of the first ._rex:e1re13r officer and in exercise of such g.;:'3';tt:e5_ryV""~powers " .gs;--..% assistant registrar, who 'is ;""'che 'ti»._recover}r---.A 'o_::'iicer;'A "

Accordingly, the action' 9 t':1"1e°pa1'!; _ ..;¢esp0I1d~ei1t~ authorities and the iInp1.1§:1f:ed= .._orders..a,reV,f§ defended as justiﬁable action.

41. I have 211327 'consideration to the submissiogis I have also examined the petition so-called record placed by the learnedégoveriiitiehtﬁleader, said to be of the proceedings before the seeorzd respeiideme-joizit registrar.

firstly deal with record placed before the the learned government pieader. As observed A. the file before the court does not appear to be a 'record maintained in the normal course of official transaction, partictiiaﬂy for holding an enquiry and disposal of the appiications of the petitioners in terms of 42 the directions issued by this court. in the o_r.deri_:d.ated 7- 124005 in WP No 11984 of 2005. This_.iiie' the order dated 3-3»-12006 sought to be quashed by "

petition pleading and praiier, come into existence _ peiikgieiipeyﬁi of this writ petition. The orderpoii is clearly a non- compliance by this court, is also not: reason that the applicatjoiigsl petitioners-judgilient debtors for setting" asicielilftheikalisaetion, are conspicuous by tiieir "tile and which were required to be provisions of Rule 38(5) of the Rules if had resulted in an order, perhaps ieould' been subject matter of further appeal etc. .. V'Iu'here:beirig no disposal of the applications in the eye of it the order is not an order in the eye of iaw; that the F reasoning is nothing but one of overlooking the statutory provisions of Rule 38(4) and (5) of the Rules and therefore ,~e,...~w:rm mm" swwwisimtsisikm Wiiwrw iwiﬂkiiﬁﬁ @333 §"'3§'§3i"§ QQUQV (:99; W WWWWW WM W'*%-§§<"%_W-Lmmeitem teem teem er: eeerertrem E--eee eeeeer §t§§§tN.£ia"é"§t§te reee eeeer we mezeeriérmr teem teem 44 XXI CPC, thong] is for a like purpose and terms, to the extent the proceeding as prov1(i..ec¥." _.r;11es varies from the procedure under --:'1".:. Vie K procedure envisages under ttie that skill' be "

followed and therefore' tire-s.pe3ct % L' a complained actiorr on 5:' respondent- authorities has to uteie the touchstone of the provisiorrs of read with Section 101 of with reference to the pro$zis.ioris.. per se.

44. "Let me the iegai contentions urged by Sri B 'tﬁziriévasezq, learneci counsel for the petitioners the part of the frst respondent recovery against the property of the petitioners who were vszgleties and Whose property has been secured repayment of the loan of the principal debtor contrary to the provisions 'of Section 134 read ttfith 141 of the Contract, I ﬁnd that it is not necessary for aa~..e:%*s~sa.a.é:taas ease eeaaesatf saeaaaaaa teem eeeat es aaaeataaa ease some ataaa t::eaae"

the permitteci time, the recovery officer was_4.li:ou_:nt1 to set aside the sale and put up the property in terms of the provisions of the Rules. 9"}l'i1e.}3rovis'ioI1s ago:

now while provides an outer time-e'li1z1it~ of ii '(lave for "

deposit of balance puteltase Vi'.e§" bid amount and also of is no scope under the preSenf«-ﬁille any time limit nor any power in its discretion to extend time fo:1f_aleposit_oftl1e' amottnt. 47 :'efe'_renceVVWtVo this provision, Sr)'. C B Szinivasan,' .Vlea:'necl.«__°"eom:1seI for the petitioners has s'nlﬁn1~i.tted on the failure of the auction purchaser to . --rlepos3',t. balance of the purchase money' within 45 days e't"mn 'the taste of sale, them whether or not the amount a'iread}'.V€ieposited is forfeited or otherwise, the property in 2 V. 'ltystestion should be subsequentl}: sold by following the eteeedure envisaged uncier olat1se~k of sub-rtzle (2) of Rule 38 of the Rules. Submission is that the transaction §-%'§:i'f';%%i-§ ﬁiéﬂlféw ﬁiifi Mﬁﬁwﬂafflﬁi '" ~ Mﬁﬁiiﬁ eoim" $35 §€ﬁiRNﬁ{EZ%%<3;lﬁi Hiﬁlirﬁ «comm-" §<ﬁ%§%E%%ﬁ&.W%Kﬁ& iv-*§.E€§r§°4€ €3!'iiZ;*iEzl.§W' 49 automatically? gets voided on 110:1-conipliz-n:e.el~~._of the requirement of deposit witllin the stiptllaied ._.ﬁ7ei?1?ﬂs of Rule 3:2(;2)(i) of the Rules__a;md_ if siio¢eaimgs'eares taken contrary to the provisions "elaiise'--j.'nofllsiihg-'tile J of Rule 38 of the Rulesl,V._iv§i1ey iilltlei of law and it is for, 'this " -.learr}.ed:..'coi§1I1sel for the p€tit.iOI1€I'S would conﬁrmation of sale, iss1.1e:o.f_ an application of the the purchaser into the petitioners and their teziVéo;its," and therefore they fall to the ground; reVspeotV oiisuch submission and the proposition sofa ﬁiflliiﬁvh is 'based this submission, reliance is placed on ' the '<ieci:$ioti..of the Supreme Court in the case of MANILAL rwwm mm" m~m.wm:2mmM fE"§%£m""'l' %a»,ss»mM§i mi: E€u£&%'€E**%.&%:'l§"i'3&%r% I£C)f£AN?¢:&.l[{sopra].

The other submission being procedural irregL1larity ' wiih regard to the maiizier in which the application of the '4 auction purchaser was entertained for the purpose of 55 achieved under Rule 38(5) or even otherwise.V.,_:"~.._i'i'he only difference could be that the provisions of and

(j) of the Rules eperate on application, as that is a legal due" 3 to 3 non-compliance witllvtfie>ste.tutory_reqisirez11ents even if the proceedings-* voided View of an earlier provision, Section 38(5) can be made if liable to satisfy that the scope of Rule 38(5) for be achieved even otherwise in of The examination is avoided in the Mme; we~eieei*eiii§eet.e §~ea*"*"%"'%m;;$l.ii"wt"%*'tf:>'f".%s€t - . ». v . 'N . \_ _ ., W M ,ﬁ e M M w ts': eteetem ewe iiﬁwm' W? eeereeeeee eiee tieﬂtetiiei' ese eete-ereéieee imiimii tweet. €33? ﬁiiteelieiifeiti-% eiee ﬁaiiiiitt present case.

33,' ;'}'h_e avbeveiiegal position only leads to one more as urged by Sri Pumshothama 1eair11etl~.:eoiinse1 for the fifth respondent, i.e. the need to disturb the sale transaction said to have place three years earlier and en the pleadings the fifth respondent has subsequently developed the €;im=e-° sssssssm mes eeimi" e-e..ii:;sss.i-irmsst Miss some" es §%%§%§;i%'*'?"«%i% mes is'? oi" msssssm iw§§€"'%»%é mew es Msmsism stew eewmé ' 'W \ <»v'*.~»L~ 2" - .~'~':2. ' ' ' 499$ Ac -. ' -. ea; ' '5, W i. 56 property", has made considerable investment that possession should not be disturbed *.

consideration. -

54. I fmti in the pI'f3VS'€I_'i.t " the 1 consideration is not even respondent, when one looks V the fourth respondent put possession of the propeI"ty.. with which he has is story that the fourth res'1;)oni£e;et""~.'§%?_s§s -i in collusion with the ﬁfth respoﬁcientv .:'fégxr4our the fifth respondent. Such biased favo11re§i____setio1"1 vitiate the exercise of the statuary ' .V"'*po\v;;:'s at the szaine time does not leave scope for the " . to plead equity at a. later stage when thirigs liaveiavorked adverse to the interest of such a person. I Viiﬁnd that the plea of equitable consideration is oniy to be rejected.

gee e-em'? e:sss§.s--emm Meets a>::r;',:>.ew' es meg mstzsm %%%i:'§»§«§ eewrr es mswgrsm Wee mam"

" "w 'Z~a«é.'.<' éi e¢e§ettes=§;§z.%s;s; ?2»~t'§tZi~.%?~% sieves? r:%§%..me%ee"§"s%%=::e 58 victims of statutory vioiations. As observeei <._i1:1 the beginning of this order, examination in Writfpetition is only about the legality of theAA»~reoover';§*'VV" K nothing more. A setting aside of "2: s:i1eV%"t2fa4";s'£:i{(tt.jon. and" t the subsecguent by t.1fie._:re~sjjo11t:£ent istton the premise that itfis. the ejie'Aof-iiaw, and such setting aside of metéale not touch upon or affect debtors. It is made clear V':n12uiseha1'ged decree or an open to the decree holder or oersons the award is made to reaiize the, award the fﬁanner provided in law. That course of 4, 'aotioI1 imhile open to the bank, but the present se1e.1~~co1adueted on 1e.----2~--2oo4 is set aside and an 's_t1bseL;a;1.ent actions fall to the ground.

Vt On the question of relief to the petitioners while in the prayer at request is made for restitution of possession of the property in question, and normaily in Civil 43/ é/ V' Ian? and followirzg due procedure.

iiﬁmﬁﬁfi' §%'Zﬂ-W$a£;§¥3e."i"§t§*'riL§%i i**%§s§%§r°§ Hﬁﬁiri £?§€}§;§%2:"¥' §é;&ﬁN}éi;'mtK§i Miﬁiﬂ £:€Z°"3*iIL§i%"¥' WE?' %<;§%m*é',@i%"&Ei{g-Ft iiﬁﬁimi f'$€§%ii,§R"i" W?' Ziriiﬂ-éiré mT.%WT 60 on the day when the first respondent recos{e1fj;é"~.,_ofiicer sought to take possession and handed o'_s_rr::§r ;:§o-.:tg,efsg::¢;:1o to the auction purchaser. " "_ 6,1;:3,6{){)/~ which had "

purchaser on the day of been forfeited on z1on--ciepo'siti13.g"oi;'ithe* price Within the stipuiated fortffitze' to this effect, by the first is awarded as costs payable by the ﬁfth From out of the 'oaiazice saievvigiricei mcurred for the auction sale anti 1ike§§;._to'~?je ii1ciirred for re--auction can be deducted V. _ *t1i"e._ amount be returned to the flfth the first respondent recovery officer out of A 'the funxisiiof the ﬂrst respo1:}.dent~bank. It is open to the _ Vt 'ht realize the awarded amount in the manner known €%~'*3- %i€"&§%%»§s.sW}&e§€§é73s §r§§@l.'§§*§ ac:.;m.m $95 £2 Eé % :3 § 52%» § %** £3:

3% as 3 E:;.E% 3 § g g E E ﬁes § Em % 3;

Q is 3 2% x Q E E %i;%z%§.?*é$4V%{°5'",4*?«'%;%€;§% §°*§[§5L3".M ﬂ:7ﬁ§»§§%V$3'é5' "

59. In the result, this writ mtitgon is ailowed with c(>s1_;... *~ M asindicated above. AI1mxure~--H, J and K are quas11e_df ' iSS%,16 of a writ of cerflomrl ._

60. Rule made absolute.

*pJk

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