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Thereafter, a series of applications and proceedings were initiated by the respondent before the DRT, DRAT and different High Courts and Civil Courts seeking various reliefs against the appellant-Bank. After the period of 7 years of the issuance of the recovery certificate in favour of the appellant-Bank, the respondent moved a Misc. application before the Recovery Officer to set aside the sale of the mortgaged property which was dismissed on 2.12.2011 by DRT-II, Mumbai. The respondent moved an application for rectification of recovery certificate dated 29.11.2004 along with an application for condonation of delay in filing the Misc. application for rectification of recovery certificate dated 29.11.2004 and an application seeking interim orders in respect of the property which was sold in the public auction by the Court Receiver. The DRT dismissed the interim application by its order dated 30.01.2012. The DRT-II further rejected the condonation of delay application filed by the respondent by its order dated 22.02.2012. The respondent aggrieved by the above said order filed an appeal before the DRAT and the same was dismissed vide order dated 10.04.2012. The respondent further chose to challenge the order of DRAT before the High Court in W.P.No.3652 of 2012 urging various grounds and prayed to quash the same and pass appropriate order in the light of the facts and circumstances of the case. On 29.8.2012, the High Court after hearing the learned counsel for the parties has allowed the writ petition by setting aside the orders of the DRT and the DRAT and condoned the delay in filing Misc. Application (L) No. 34 of 2012 filed by the respondent and restored the Misc. application filed by him before the DRT-II, Mumbai to its file and directed it to decide the same on its own merits in accordance with law afresh in the light of the law declared by this Court and the High Court on the subject matter.

As the issue before us is with regard to the condonation of delay in filing the Misc. Application by the respondent and allowing the same in the writ petition filed by the respondent which is under challenge in this appeal at the instance of the appellant-Bank by urging various legal grounds, we will deal with this aspect of the case only, in this judgment. On 25.01.2012, the respondent filed Misc. Application (L) No.34 of 2012 before DRT-II, Mumbai for avoiding the sale and seeking rectification of Recovery Certificate and decree dated 9.12.1996, passed by the High Court. The filing of that Misc. application was delayed by 23 days. Therefore, the respondent filed Misc. Application No. 7 of 2012 for condonation of delay in filing the Misc. Application(L) No.34 of 2012 before the DRT-II, which application was dismissed by its order dated 22.02.2012, by declining to exercise its discretionary power to condone the delay in filing such Misc. application by the respondent. Being aggrieved of the said order, the respondent filed Misc. Appeal No. 35 of 2012 before the DRAT questioning the correctness of the above order and prayed to set aside the same and allow the application by condoning the delay in filing that application before the DRT. The DRAT vide its order dated 10.4.2012 dismissed the appeal holding that the same is barred by limitation and no proper and satisfactory explanation was assigned by the respondent.

Being aggrieved of the same, the respondent approached the High Court by filing Writ Petition No.3652 of 2012 questioning the correctness of the order dated 10.04.2012 passed by the DRAT urging various grounds with a prayer to set aside the above said order. The High Court after hearing the parties vide its order dated 29.08.2012 has held that the order passed by the DRT-II in dismissing the application of the respondent without deciding the issue i.e. whether the public auction of the sale of the mortgaged property conducted by the Court Receiver as per the direction of the High Court, after the execution proceedings initiated by the appellant-Bank against the respondent stood transferred to the DRT in view of Section 31 of DRT Act as the DRT came into existence on 16.07.1999, as per the notification issued by the Central Government, is not legal and valid in law. The sale of the property of the respondent has affected his rights as the same is in contravention of the provisions of the DRT Act and the relevant rules applicable for sale of the property which go to the root of the matter and therefore, he has prayed to set aside the order dated 10.04.2012 passed by the DRAT along with the order passed by the DRT on the Misc. Application No.7 of 2012 seeking for condonation of delay in filing Misc. Application(L) No.34 of 2012 and requested to restore the same to its original file of the DRT, Mumbai and also further directed it to decide the same on its own merits keeping in view the law declared by the High Court as well as this Court. The appellant-Bank was aggrieved by the above said judgment and order it has filed this appeal questioning the correctness of the same by urging various grounds in support of its case.

We are of the view that the High Court has rightly found fault with the DRT and DRAT in rejecting the Misc. Application filed by the respondent, who has sought for rectification of the recovery certificate filed by him. Therefore, the High Court has rightly rejected the same after adverting to the judgments in the cases of State Bank of Bikaner & Jaipur v. Ballabh Das & Co. & Ors. (supra) and Punjab National Bank, Dasuya v. Chajju Ram & Ors. (supra). The exercise of jurisdiction by the High Court for giving the direction to the Court Receiver to sell the mortgaged property even after the DRT was established at Mumbai and in view of the fact that the proceedings before the High Court were automatically transferred to it in view of Section 31 of the DRT Act and therefore it was impermissible in law for the High Court to direct the Court Receiver to sell the property of the respondent in public auction by executing the Court decree, which action of the Court Receiver is void ab initio in law. Therefore, the order of the DRT and the DRAT, in dismissing the condonation of delay application by the respondent holding that the same is barred by limitation and consequently dismissing Misc. Application to set aside the sale is untenable in law and therefore, the High Court has rightly answered the legal contentions in favour of the respondent by giving valid and cogent reasons in the impugned judgment in exercise of its Judicial Review power.