- 1 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ WRIT PETITION NO. 26112 OF 2024 (CS-RES) C/W WRIT PETITION NO. 22999 OF 2024 (CS-RES) IN W.P.NO.26112 OF 2024 BETWEEN 1. SRI VASANTH KUMAR H G S/O LATE GOPALAKRSIHNA AGED ABOUT 50 YEARS 2. SMT. KOMALA L W/O VASANTH KUMAR H G AGED ABOUT 39 YEARS BOTH R/AT NO. 23/1, HENNAGARA VILLAGE JIGANI HOBLI, ANEKAL TALUK BENGALURU RURAL DISTRICT 562105 ...PETITIONERS (BY SRI: UDAYA HOLLA., SR. ADVOCATE FOR SRI. M MUNIRAJU., ADVOCATE) AND Digitally signed by SHWETHA RAGHAVENDRA Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 1. THE STATE OF KARNATAKA DEPARTMENT OF CO OPERATION M S BUILDING DR. B R AMBEDKAR VEEDHI, BENGALURU 560 001 REPRESENTED BY ITS SECRETARY 2. THE DEPUTY REGISTRAR OF CO OPERATIVE SOCIETIES (NI 441) OFFICE AT NO. 62, 2ND FLOOR, MARGOS RAOD 3RD MAIN, 18TH CROSS PIPELINE, MALLESWARAM BENGALURU 560 055 3. CHIEF EXECUTIVE OFFICER SLV SOUHARDA PATTINA SAHAKARI NIYAMITAH OFFICE AT NO. 515 SLV KUTEERAM 10TH CROSS PADMANABHANAGARA BENGLAURU 560 070 4. SRI KRISHNAPPA P S/O LATE PAPPAIAH AGED ABOUT 55 YEARS R/AT HOMPALAGATTA VILLAGE HONAKANAHALLI POST KASABA HOBLI, ANEKAL TALUK BENGALURU DISTRICT 1562100 5. SRI MANJUNATH B N S/O NATARAJ B AGED ABOUT 50 YEARS R/AT NO. 21, 1ST F CROSS J C NAGAR, NANDI LAYOUT BENGALURU 560 096 …RESPONDENTS (BY SRI. YOGESH D. NAIK., AGA FOR R1 & R2; SRI. ABHISHEK. N.V., ADVOCATE FOR SMT. GOWHAR UNNISA., ADVOCATE FOR C/R3; - 3 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 SRI. N.S. SRIHARI, ADVOCATE FOR C/R5) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT OR ORDER OR DIRECTION TO QUASH THE IMPUGNED ORDER DATED 18.09.2024 VIDE IN APPEAL NO. 364/2023 PASSED BY THE HONBLE KARNATAKA APPELLATE TRIBUNAL AT BENGALURU AND CONSEQUENTLY QUASH THE AWARD/ORDER DATED 21.12.2020 VIDE CASE NO. DRD/K.R.S.S.S.L/13448/2019-20 PASSED BY THE 2 RESPONDENT DEPUTY REGISTRAR OF CO-OPERATIVE SOCIETIES AND CONSEQUENTLY QUASH THE SALE CERTIFICATE DATED 14.12.2023 REGISTERED ON 15.12.2023 WITH RESPECT TO MORTGAGED SCHEDULE PROPERTY AS PER ANNEXURE - A. B AND C. AND ETC. IN W.P.NO.22999 OF 2024 BETWEEN SRI VASANTH KUMAR H G S/O LATE GOPALAKRISHNA, AGED ABOUT 50 YEARS, R/AT NO. 23/1, HENNAGARA VILLAGE, JIGANI HOBLI, ANEKAL TALUK, BENGALURU RURAL DISTRICT - 562105. ...PETITIONER (BY SRI: UDAYA HOLLA., SR. ADVOCATE FOR SRI. M MUNIRAJU., ADVOCATE) AND - 4 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 1. THE STATE OF KARNATAKA DEPARTMENT OF CO OPERATION, M S BUILDING, DR B R AMBEDKAR VEEDHI, BENGALURU - 560 001. REPRESENTED BY ITS SECRETARY. 2. THE ASSISTANT REGISTRAR OF CO OPERATIVE SOCIETIES/ RECOVERY OFFICER NI-441, KARNATAKA STATE SOUHARDA, SAMYUKTA SAHAKARI NIYAMITHA, NO. 68, 17TH AND 18TH CROSS, MARGOSA ROAD, MALLESWARAM, BENGALURU - 560055. 3. CHIEF EXECUTIVE OFFICER, SLV SOUHARDA PATTINA SAHAKARI NIYAMITHA, OFFICE AT NO.515, SLV KUTEERAM, 10TH CROSS, PADMANABHANAGARA, BENGALURU-560070. 4. SRI. MANJUNATH B.N, S/O NATARAJ. B, AGED ABOUT 50 YEARS, R/AT NO.21, 1ST 'F' CROSS, J.C. NAGAR, NANDINI LAYOUT, BENGALURU-560096. …RESPONDENTS (BY SRI. YOGESH D. NAIK., AGA FOR R1 & R2; SMT. GOWHAR UNNISA., ADVOCATE FOR R3; SRI. N.S. SRIHARI, ADVOCATE FOR R4) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT OR ORDER OR DIRECTION TO QUASH THE IMPUGNED NOTICE DTD. 02.08.2024 VIDE EP.NO.KA.RAA.SOU.SAM.SA.NI/SA.SAM.SA.NI/VA.A/11/2021- - 5 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 22 ISSUED BY THE R-2 BY INITIATING PROCEEDINGS UNDER RULE 19(3) OF THE KARNATAKA SOUHARADHA SAHAKARI RULES BY TAKING STEPS FOR EVICTION THE PETITIONER FROM THE PROPERTY IN QUESTION AS PER ANNX-A. AND ETC. THESE WRIT PETITIONS COMING ON FOR ORDERS AND HAVING BEEN RESERVED FOR ORDERS ON 26.11.2024, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MR JUSTICE SURAJ GOVINDARAJ CAV ORDER 1. The Petitioners in W.P.No.26112/2024 are before this Court seeking for the following reliefs: a. To issue a writ of Certiorari or any other appropriate writ or order or direction to quash the impugned order dated: 18.09.2024 vide in appeal No.364/2023 passed by the Hon’ble Karnataka Appellate Tribunal at Bengaluru and consequently quash the award/order dated: 21.12.2020 vide case No. DRD/K.R.S.S.S.L/13448/2019-20 passed by the 2nd respondent-Deputy Registrar of Co-operative Societies and consequently quash the sale Certificate dated 14.12.2023 registered on 15.12.2023 with respect to mortgaged schedule property as per Annexure-A, B and C and; b. To grant such other order or further relief as this Hon’ble Court may deem fit and proper including the costs of these proceedings to the petitioners. 2. The Petitioners in W.P.No.22999/2024 are before this Court seeking for the following reliefs: i. To issue a writ of Certiorari or any other appropriate writ or order or direction to quash the impugned order dated: 02.08.2024 vide EP No. - 6 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 Ka.Raa.Sou.Sam.Sa.Ni/VaA/11/2021-22 issued by the 2nd Respondent by initiating proceedings under Rule 19(3) of the Karnataka Souhardha Sahakari Rules by taking steps for eviction the Petitioner from the property in question as per Annexure-A and; ii. To grant such other order or further relief as this Hon’ble Court may deem fit and proper including the costs of these proceedings to the petitioners. 3. The petitioners contend that the original property bearing BBMP New Municipal No.4/01 (Old No.418) BBMP PID No.62-108-4/01, Katha No.418/4-01 situated at 6th Main, 4th cross, BBMP Ward No.65, Hombegowda Nagara, Wilson Garden, Bangalore, was acquired by one Sri.N.Gopalakrishna, the father of petitioner No.1. On his expiry, his wife Anuradhamma, petitioner No.1 and another son, H.G. Gopalakrishna, succeeded to the property. There being a registered partition on 04.07.2013, the said property came to be allotted to petitioner No.1. 4. For the purpose of putting up construction of a residential house on the said property, petitioner No.1, borrowed a sum of Rs.30 lakhs from - 7 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 respondent No.3-SLV Souharda Pattina Sahakari Niyamitha on 27.11.2015, agreeing to repay the same by 27.11.2025. 5. The petitioner claims to have put up construction of several houses in the said property and rented out a few of them, retaining one house for his own use. The petitioner claimed that the entire loan amount was not disbursed in favour of the petitioner, but only a sum of Rs.25,35,000/- was disbursed. The petitioners over a period of time have paid an amount of Rs.49,68,675/- to the said bank, as regards which receipts have been issued. However, contending that there are dues owed by the petitioner, respondent No.3 initiated a dispute under section 70 of the Co-operative Society Act before respondent No.2-Deputy Registrar, seeking for payment of a sum of Rs.39,46,551/- under the Karnataka State Souharda Co-operative Act. 6. The petitioners claim that this proceeding had been initiated behind the back of the petitioner inasmuch - 8 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 neither a prior notice was issued nor a notice was issued by the Deputy Registrar of Co-operative Societies and by placing the petitioners ex-parte, an award came to be passed on 21.12.2020 for a sum of Rs.39,46,551/-. 7. The above said proceeding came to the knowledge of the petitioners much later, when a notice was issued by respondent No.3 on 28.10.2023 calling upon the petitioner to make payment of a sum of Rs.31 lakhs on or before 26.11.2023, failing which the SLV Souharda Pattina Sahakari Niyamitha Bank would take steps for auctioning the property. It is only thereafter that on enquiry the petitioner came to know that even in the proceeding before respondent No.2, a notice had been falsely claimed to have been issued to the petitioners on 30.08.2019. The said notice was never served on the petitioners but a concocted and fabricated acknowledgement had been produced before respondent No.2. Post the notice dated 28.10.2023, one another notice dated - 9 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 12.12.2020 came to be issued calling upon the petitioners to make payment of sum of Rs.30,14,664/- by 4.01.2024 and it is in that background, the petitioner after obtaining certified copies of the award passed by respondent No.2- Deputy Registrar challenged the same before the Karnataka Appellate Tribunal in Appeal No.364/2023, where an ad-interim order was granted on 12.01.2024. 8. Petitioners thereafter came to know of respondent No.3 having conducted an auction and issuing a sale certificate to respondent No.5 auction purchaser on 14.12.2023, they claim that no notice of sale had been issued on the petitioners. The petitioner continuing to be in possession of the property, they contend that no auction sale could have been effected. 9. Even prior to the filing of the appeal before the Appellate Tribunal, the petitioner had approached this court by filing writ petition in WP number - 10 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 622/2024 which came to be disposed, reserving liberty to the petitioner to approach the Appellate Tribunal. 10. The petitioner claims that post the sale in favour of respondent No.5, respondent No.5, in the month of June, 2024 sought to dispossess the petitioner and the tenants when the petitioner approached the jurisdictional police who though promised to take action, but did not do so. Hence the petitioner had filed a suit in O.S. No.5061/2024 against the Bank and respondent No.5 where an interim order was granted in favour of the petitioner restraining the bank and the purchaser from interfering with their possession. 11. Separately, the award having been challenged before the Karnataka Appellate Tribunal, while the said appeal was pending, the Asst. Registrar of Cooperative Societies had issued a notice on 02-08- 2024 to the tenants asking them to vacate the property which came to be challenged by petitioner - 11 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 No.1 in WP number 22999/2024, when the said notice was stayed subject to the petitioner depositing a sum of Rs.5,00,000/- with respondent No.3, which was so deposited. 12. Though the petitioner had contended in the appeal before the Appellate Tribunal that the award had been passed behind the back of the petitioner, the Appellate Tribunal considering that the notice had been served on one K. V. Kushal who is son of the petitioners held that the notice has been properly served and as such held the appeal to be beyond the period of limitation, dismissed the application for condonation and consequently dismissed the appeal. It is in that background that the petitioners are before this court seeking for the aforesaid reliefs. 13. Sri.Udaya Holla, learned Senior counsel for the petitioner would submit that, 13.1. The award which has been passed 29.12.2020 is without any notice to the petitioners. A - 12 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 perusal of the award would only indicate the claim of the Bank and that notice has been served, the manner of service of notice on whom it has been served has not been mentioned in the award, there being non- service of notice on the petitioners who are the borrowers/parties, the award is null and void. 13.2. When a claim has been made in a dispute raised for making payment of monies, it is but required that notice of the said claim is served on the person from whom monies are claimed. Without such service of notice, the matter ought not to have been proceeded with by the DRCS and an award passed directing the petitioners to make payment of allegedly due amounts could not have been passed. 13.3. In this regard, he relies upon Rule 17(2)(c) of the Karnataka Souharda Sahakari Niyama 2004, which is reproduced hereunder for easy reference: - 13 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 17. ರ ಸನ ಜ ಮತು ಾಾಟ (2) ರ ಸನ ಜ ಮತು ಾಾಟ ಅಥಾ ಜ ರತ ಾಾಟದ ಈ ೆಳನ ಯಮಗಳನು" #ಾಸತಕ%ದು&; ಎಂದೆ.– () ಾಾಟೆ% ಮುಂ)ೆ ಜ ಾಡ+ೇ-ದ& ಾಾಟ ಅ.ಾ/ಯು ಜ 0ೋ2ೕ3ೊಂದನು" ೕಪ56ಋ89ೆ ೈಯ-ಕಾ ಅಥಾ ಅವನ ಕುಟುಂಬದ ವಯಸ% ಪ5ರುಷ ಸದಸ>ನ ?ೕ@ೆ ಅಥಾ ಅವನ ಅ.ಕೃತ ಏCೆಂಟನ ?ೕ@ೆ Cಾ/ ಾಡತಕ%ದು&. Dಾ9ೆ Cಾ/ ಾಡಲು 3ಾಧ>ಾಗGದ& ಸದ/ 0ೋ2ೕಸನು" ೕಪ56ಋ8ಯ ಇೕIನ ಾಸಸಳೆಂದು Jದು ಬಂGರುವ ಸಳದ Kಾವ5Lೇ ಎದು& ಾಣುವಂಥ Nಾಗದ ಅಂ2ಸತಕ%ದು&, ಜ ಾಡ@ಾLೆ ಎಂಬ ಸಂಗಯನು" ಜ ಾಡ@ಾದ ಸನ ?ೕ@ೆ ಅಥಾ ಅದೆ% DೊಂGೊಂOರುವ Kಾವ5Lೇ ಸಳದ ಮತು ವಸೂ ಅ.ಾ/ಯು ಾಾಟೆ% DೊಂGೊಂOರುೆ ೊಡುವ ಸಲುಾ ಅವಶ>Qರುವ5Lೆಂದು NಾQಸುಾ ಸಳದ ಅಥಾ ಸಳಗಳ ಡಂಗುರ DೊRೆಸುವ5ದರ ಾವ5Lೇ ಅಂಥ ಇತರ ಾOೆಯ QSಾನGಂದ ಸಹ UೂೕVಸತಕ%ದು&, ಜಯ 0ೋ2ೕನ ಆGತ ನಮೂGಸ@ಾದ G0ಾಂಕLೊಳ9ೆ ಬರ+ೇಾದ +ಾೆ Xಬಲಗನು", ಬOY : ೆಚ[ಗಳ ಬOY ಮತು ಸತ ಸಂLಾಯ ಾಡGದ& ಸದ/ ಸತನು" ಾಾಟೆ% ಇಡ@ಾಗುವ5Lೆಂದು G6ಷ\ಪOಸತಕ%ದು&. ಅಂಥ 0ೋ2ನ ಒಂದು ಪ^ಯನು" O-%Lಾರ/9ೆ ಕಳ_ಸತಕ%ದು&. ವಸೂ ಅ.ಾ/ಯವರು Lೇ6`ದ ಒa 0ೋ2ೕಸನು" ಸಾ6/ ಾಜ>ಪತ^ದಯೂ ಅ.ಸೂIಸತಕ%ದು&. 13.4. NOTE: The reproduction of the said Rule 17 has been made in Kannada since the said Rules are not available in English, it would therefore be required for the Principal Secretary, Cooperative Department, as also Law Secretary, Government of Karnataka to get the same translated into English and after due - 14 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 verification and authentication, publish the same. All Acts, Rules, notifications, etc. are required to be available both in English and Kannada for easy understanding by all concerned. 13.5. By referring to Clause (c) of Sub-rule (2) of Rule 17 he submitted that the notice has to be served on a male member of the borrower or the male member of his family. In the present case, admittedly there is no notice which has been served on the borrower, that is, the petitioners herein and the person referred to in the order passed by the Karnataka Appellate Tribunal, namely Kushal, who is a minor son of the petitioners. Thus, no service has been effected on the petitioners or a male member of the family of the petitioners. Service on the minor member of the family does not comply with Clause (c) of Sub-rule (2) of Rule 17 and as such, there being no service of notice, the - 15 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 DRCS could not have proceeded with the matter and pass an award. The said award is, therefore, completely nonest and not binding on the petitioners. This aspect has not been taken into account by the Karnataka Appellate Tribunal in the appeal filed. The Appellate Tribunal has held a notice in favour of a minor member to be proper notice which is contrary to Clause (c) of Sub-rule (2) of Rule 17. 13.6. His further submission is that without notice of the said award, the limitation period cannot be computed from the date of the award. The petitioner coming to know of the award only when the respondents sought to take possession of the property, immediately thereafter the petitioner had filed a suit in O.S. No.5061/2024 seeking for injunction and having come to know that award has been passed against the petitioner, they filed an appeal in Appeal No.364/2023 before the - 16 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 Karnataka Appellate Tribunal. The Appellate Tribunal wrongly held that Aadhaar card is not a proof of the age of a person and except the Aadhaar card, the appellants having not produced any documents to show the age of Kushal who received the notice, the Appellate Tribunal has wrongly come to a conclusion that the person who received the notice through RPAD was minor. 13.7. The appellants having clearly and categorically established the reason for their non-appearance on account of non-service of notice before the DRCS, the Appellate Tribunal has wrongly come to a conclusion that the appellants have not made out any ground for their non-appearance and as such, there would be no requirement to set aside the exparte Judgment/award and remit the matter to the DRCS for fresh consideration and on that basis the Appellate Tribunal has held that the delay of 2 years, 311 - 17 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 days in challenging the exparte award is barred by limitation and the explanation given for condonation of delay is not acceptable. 13.8. This, he submits, is an improper application of law by the Appellate Tribunal. What the Appellate Tribunal ought to have seen was the date of knowledge of the award on part of the appellant which was the date on which interference with the possession was resorted to and the time taken by the appellant in applying for certified copies and filing the appeal. This not having been done, he submits that the dismissal of the appeal filed by the appellant on the ground of rejection of the application for condonation of delay is not proper and submits that this Court could take note of the fact that in fact there is no delay and take up the matter on merits or in the alternative remit the matter for fresh consideration to the Appellate Tribunal on that - 18 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 account. However, he further submits that since the award of the DRCS itself was ex-parte, this court could remit the matter to the DRCS for fresh consideration after providing an opportunity to the petitioners to submit their defence, both in writing and oral arguments. He submits that an ex-parte Judgment cannot be binding on the petitioners. 13.9. He submits that the respondent-Bank has not carried out a proper valuation of the property before bringing the property for auction. The property has been grossly undervalued. According to the petitioners, the value of the property is nearly Four crores. For a loan amount of Rs.Thirty lakhs, respondent-Bank has sold the property in an auction for Rs.1.22 crores, which could not have been done. Thus, he submits that the procedure required has not been followed by the Bank. - 19 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 13.10. In this regard, Sri.Udaya Holla, learned Senior counsel relies upon the decision of the Hon’ble Apex Court in Binayak Swain vs. Ramesh Chandra Panigrahi and Another1, more particularly paras 3 and 6 thereof which are reproduced hereunder for easy reference: 3. After the ex parte decree was passed in Appeal No. 178 of 1942 by the District Judge on March 9, 1943 the plaintiff executed the decree, attached the properties in dispute and himself purchased the properties in court auction. The plaintiff also took delivery of the properties on May 17, 1946 and since that date the respondents have been in possession of the properties and enjoying the usufruct. After the decree of the High Court dated November 11, 1946 in Second Appeal No. 100 of 1943 the appellant made an application for restitution in the Court of the Additional Munsif in Miscellaneous Judicial Case No. 34 of 1947. The plaintiff obtained a stay of the hearing of the Miscellaneous Judicial Case from the Court of the Additional District Judge but on March 30, 1948 the order of stay was discharged. In Civil Revision No. 75 of 1948 the High Court also granted interim stay in the proceedings in the miscellaneous judicial case at the instance of the plaintiff but the order of stay was vacated by the High Court on April 28, 1949. Thereafter the present appellant got the miscellaneous judicial case stayed till disposal of his second appeal after remand. On July 12, 1956 the miscellaneous judicial case was allowed by the Munsif and an order of restitution was made in favour of the appellant. The respondents filed an appeal before the 1 AIR 1966 SC 948 - 20 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 Subordinate Judge of Berhampur who allowed the appeal and set aside the order of restitution. The appellant took the matter before the High Court in Miscellaneous Appeal No. 24 of 1958 which was allowed by P.V. Balakrishna Rao, J. on October 3, 1958 and it was ordered that the restitution of the properties should be made to the appellant subject to the condition that he must deposit the amount decreed in favour of the plaintiff decree-holder. The order of the learned Single Judge was, however, set aside in letters patent appeal by a Division Bench which held that the appellant was not entitled to restitution of properties sold in the execution case. 6. For the reasons expressed, we are satisfied that the appellant is entitled to restitution of the properties sold in execution of the ex parte decree subject to equities to be adjusted in favour of the respondent decree-holders. We order that the appellant should be restored back to possession of the properties sold in the execution case subject to the condition that he deposits the amount of Rs 970 in the Court of the Munsif, Aska within two months from this date. If no deposit is made within this time this appeal will stand dismissed with costs. But if the appellant makes the deposit within the time allowed the sale of the properties in the execution case will be set aside and the respondents will make over the possession of the properties sold to the appellant. The appellant will not be entitled to any past mesne profits but if the respondents do not deliver the possession of the properties the appellant will be entitled to the future mesne profits from the respondents from the date of deposit till the actual date of delivery of possession. Learned counsel for the appellant has informed us that the deposit has already been made by the appellant in pursuance of the order of the learned Single Judge of the High Court dated October 3, 1958. If the deposit has already been made the appellant will be entitled to - 21 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 take possession of the properties through the executing court and to future mesne profits from the date of this judgment till the actual date of delivery of possession. 13.11. Relying on Binayak Swain’s case, he submits that the Judgment debtor would be entitled for restitution of the properties sold in execution of an exparte decree subject to equities to be vested in favour of the decree holder and on that basis he submits that award passed by the Registrar against the petitioner being exparte, irrespective of the sale of the properties being effected in an auction, the award being exparte would have to be set-aside. 13.12. The decision of the Hon’ble Apex Court in Desh Bandhu Gupta vs. N.L. Anand & Rajinder Singh2, more particularly paras 9 and 10 thereof which are reproduced hereunder for easy reference: 2 1994 (1) SCC 131 - 22 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 9. However, there is considerable force in the contention of the appellant that the procedure prescribed under Order 21 Rule 66 was flagrantly violated by the Executing Court. We have already noted the order of the court to conduct the sale. For judging its legality and validity, it would be desirable to have a bird's eye view of the procedure for sale of immovable property in execution. On an application for execution filed under Order 21 Rule 5 the court shall ascertain the compliance of the prerequisites contemplated under Rule 17 and on finding the application in order, it should be admitted and so to make an order, thereon to issue notice under Rule 22, subject to the conditions specified therein. If a notice was served on the judgment-debtor as enjoined under Order 5 but he did not appear or had not shown cause to the satisfaction of the court, under Rule 23 the court “shall order the decree to be executed”. If an objection is raised to the execution of the decree, by operation of sub-rule (2) thereof, “the court shall consider such objections and make such order as it thinks fit”. Thereafter in the case of a decree for execution against immovable property an attachment under Rule 54 should be made by an order prohibiting the judgment-debtor from transferring or creating encumbrances on the property. Under Rule 64 the court may order sale of the said property. Under Rule 66(2) proclamation of sale by public auction shall be drawn up in the language of the court and it should be done after notice to the decree-holder and the judgment-debtor and should state “the time and place of sale” and “specify as fairly and accurately as possible” the details specified in clauses (a) to (d) of sub-rule (2) thereof. The Civil Rules of Practice in Part L in the Chapter 12 framed by the High Court of Delhi ‘Sale of Property and Delivery to the Purchaser’ Rule 2 provides that whenever a court makes an order for the sale of any attached property under Order 21, Rule 64, it shall fix a convenient date not being - 23 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 distant more than 15 days, for ascertaining the particulars specified in Order 21 Rule 66(2) and settling the proclamation of sale. Notice of the date so fixed shall be given to the parties or their pleaders. In Rule 4 captioned ‘Settlement of Proclamation of Sale, Estimate of Value’ it is stated that on the day so fixed, the court shall, after perusing the documents, if any, and the report referred to in the preceding paragraph, after examining the decree-holder and judgment-debtor, if present, and after making such further enquiry as it may consider necessary, settle the proclamation of sale specifying as clearly and accurately as possible the matters required by Order 21 Rule 66(2) of the Code. The specifications have been enumerated in the rule itself. The proclamation for sale is an important part of the proceedings and the details should be ascertained and noted with care. This will remove the basis for many a belated objections to the sale at a later date. It is not necessary to give at proclamation of sale the estimate of the value of the property. The proclamation when settled shall be signed by the Judge and got published in the manner prescribed by Rule 67. The court should authorise its officers to conduct the sale. Under Rule 68 the sale should be conducted at “the place and time” specified or the time may be modified with the consent in writing of the judgment-debtor. The proclamation should include the estimate, if any, given by either judgment-debtor or decree-holder or both the parties. Service of notice on judgment-debtor under Order 21 Rule 66(2), unless waived by appearance or remained ex parte, is a fundamental step in the procedure of the court in execution. Judgment-debtor should have an opportunity to give his estimate of the property. The estimate of the value of the property is a material fact to enable the purchaser to know its value. It must be verified as accurately and fairly as possible so that the intending bidders are not misled or to prevent them from offering - 24 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 inadequate price or to enable them to make a decision in offering adequate price. In Gajadhar Prasad v. Babu Bhakta Ratan [(1973) 2 SCC 629 : (1974) 1 SCR 372] this Court, after noticing the conflict of judicial opinion among the High Courts, held that a review of the authorities as well as the amendments to Rule 66(2)(e) make it abundantly clear that the court, when stating the estimated value of the property to be sold, must not accept merely the ipse dixit of one side. It is certainly not necessary for it to state its own estimate. If this was required, it may, to be fair, necessitate insertion of something like a summary of a judicially considered order, giving its grounds, in the sale proclamation, which may confuse bidders. It may also be quite misleading if the court's estimate is erroneous. Moreover, Rule 66(2)(e) requires the court to state only nature of the property so that the purchaser should be left to judge the value for himself. But, the essential facts which have a bearing on the very material question of value of the property and which could assist the purchaser in forming his own opinion must be stated, i.e. the value of the property, that is, after all, the whole object of Order 21, Rule 66(2)(e), CPC. The court has only to decide what are all these material particulars in each case. We think that this is an obligation imposed by Rule 66(2)(e). In discharging it, the court should normally state the valuation given by both the decree-holder as well as the judgment-debtor where they both have valued the property, and it does not appear fantastic. It may usefully state other material facts, such as the area of land, nature of rights in it, municipal assessment, actual rents realised, which could reasonably and usefully be stated succinctly in a sale proclamation has to be determined on the facts of each particular case. Inflexible rules are not desirable on such a question. It could also be angulated from another perspective. Sub-rule (1) of Rule 66 enjoins the court that the details enumerated in sub-rule (2) shall be - 25 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 specified as fairly and accurately as possible. The duty to comply with it arises only after service of the notice on the judgment-debtor unless he voluntarily appears and is given opportunity in the settlement of the value of the property. The absence of notice causes irremedial injury to the judgment-debtor. Equally publication of the proclamation of sale under Rule 67 and specifying the date and place of sale of the property under Rule 66(2) are intended that the prospective bidders would know the value so as to make up their mind to offer the price and to attend at sale of the property and to secure competitive bidders and fair price to the property sold. Absence of notice to the judgment-debtor disables him to offer his estimate of the value who better knows its value and to publicise on his part, canvassing and bringing the intending bidders at the time of sale. Absence of notice prevents him to do the above and also disables him to know fraud committed in the publication and conduct of sale or other material irregularities in the conduct of sale. It would be broached from yet another angle. The compulsory sale of immovable property under Order 21 divests right, title and interest of the judgment-debtor and confers those rights, in favour of the purchaser. It thereby deals with the rights and disabilities either of the judgment-debtor or the decree-holder. A sale made, therefore, without notice to the judgment- debtor is a nullity since it divests the judgment- debtor of his right, title and interest in his property without an opportunity. The jurisdiction to sell the property would arise in a court only where the owner is given notice of the execution for attachment and sale of his property. It is very salutory that a person's property cannot be sold without his being told that it is being so sold and given an opportunity to offer his estimate as he is the person who intimately knew the value of his property and prevailing in the locality, exaggeration may at time be possible. In Rajagopala Ayyar v. Ramachandra - 26 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 Ayyar [AIR 1924 Mad 431 : ILR 47 Mad 288 : 46 MLJ 104] the Full Bench held that a sale without notice under Order 21 Rule 22 is a nullity and is void and that it has not got to be set aside. If an application to set aside such a void sale is made it would fall under Section 47. 10. Above discussion indicates a discernible rule that service of notice on the judgment-debtor is a fundamental part of the procedure touching upon the jurisdiction of the Execution Court to take further steps to sell his immovable property. Therefore, notice under Order 21 Rule 66(2), unless proviso is applied (if not already issued under Order 21 Rule 22), and service is mandatory. It is made manifest by Order 21 Rule 54(1-A) brought on statute by 1976 Amendment Act with peremptory language that before settling the terms of the proclamation the judgment-debtor shall be served with a notice before settling the terms of the proclamation of sale. The omission thereof renders the further action and the sale in pursuance thereof void unless the judgment- debtor appears without notice and thereby waives the service of notice. 13.13. By relying on Desh Bandhu Gupta’s case, he submits that before auction sale is proposed, the estimate given by the Judgment detbor as also decree holder of the value of the property ought to be collected and it is only on that basis, as also on evaluation report that the - 27 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 estimate of the value of the property should be published, so that the intending bidders are not misled or prevented from offering adequate price. 13.14. In the present case, he submits that at no point of time were the Judgment debtors called upon to indicate their value, it is only subsequently that they have indicated the value at more than Rs.Four crores which has not been denied by the respondents. Thus, he submits that notice on the Judgment debtor is a fundamental procedure to be followed before the price were to be fixed which has been completely violated by the respondent-Bank. 13.15. The decision of the Hon’ble Apex Court in Mahakal Automobiles and Anr. Vs. Kishan Swaroop Sharma3, more particularly para 11 thereof which are reproduced hereunder for easy reference: 3 2008(13) SCC 113 - 28 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 11. When a property is put up for auction to satisfy a decree of the court, it is mandatory for the court executing the decree, to comply with the following stages before a property is sold in execution of a particular decree: (a) Attachment of the immovable property; (b) Proclamation of sale by public auction; (c) Sale by public auction. Each stage of the sale is governed by the provisions of the Code. For the purposes of the present case, the relevant provisions are Order 21 Rule 54 and Order 21 Rule 66. At each stage of the execution of the decree, when a property is sold, it is mandatory that notice shall be served upon the person whose property is being sold in execution of the decree, and any property which is sold, without notice to the person whose property is being sold is a nullity, and all actions pursuant thereto are liable to be struck down/quashed. 13.16. By relying on Mahakal Automobiles’ case, he submits that it is mandatory that notice shall be served upon the person whose property is proposed to be sold in execution and without such service of notice, no property could be sold. 13.17. The decision of the Hon’ble Apex Court in M/s Shalimar Cinema vs. Bhasin Film - 29 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 Corporation and Another.4, more particularly paras 3 and 4 thereof which are reproduced hereunder for easy reference: 3. In the view that we propose to take on the second question, we do not consider it necessary to express our view on the first question. But we do wish to say that the court has a duty to see that the requirements of Order 21 Rule 66 are properly complied with. In the words of the Judicial Committee, “In sales under the direction of the court, it is incumbent on the court to be scrupulous in the extreme”. Though it may not be necessary for the court to make a valuation and enter it in the sale proclamation in every case, it is desirable at least in cases of sale of valuable property that the court make its valuation and enter it in the sale proclamation. We think it necessary to add that no action of the court or its officers should be such as to give rise to the criticism that it was done in an indifferent or casual way. We are constrained to make these observations because it was found by the learned Single Judge in the present case that there actually was no application under Order 21 Rule 66 and that the sale proclamation was prepared in a routine fashion. Having said this much, we now proceed to consider the second question. The bid list prepared by the court auctioneer on August 29, 1977 shows that each of the bidders who participated in the auction on August 29, 1977 put his signature against the bid offered by him. For example, Sardar Charanjit Singh, who at one stage offered a bid of Rs 1,70,000 and later raised it to Rs 2,50,000 and again to Rs 2,90,000 has put his signature at three places against the three bids offered by him. Similarly, Gian Chand Sharma, who originally offered a bid of Rs one 4 1987(4) SCC 717 - 30 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 lakh and later raised it to Rs two lakhs has put his signatures at two places and Tejwant Singh, who initially offered a bid of Rs 1,80,000 and later raised it to Rs 2,80,000 has put his signature at two places against the bids offered by him. At the end of the document, there is to be found a note by the court auctioneer stating, “It is one o'clock, considering that some good bids may come, the auction will be continued on September 1, 1977 from 10.00 a.m. to 1.00 p.m.” It is seen that the bidders who participated in the auction on August 29, 1977 put their signatures against the respective bids offered by them, but not at the end of the document. If the signatures had been put at the end of the document, that would have established that the court auctioneer had indeed announced that the auction was adjourned to September 1, 1977. The question whether the sale was adjourned to September 1, 1977 and announcement made on the spot on August 29, 1977 was expressly raised and put in issue. One would have thought that the auction purchaser would have called the court auctioneer as a witness on his behalf to prove the statement contained in the bid list. The auction purchaser refrained from calling him as a witness on his behalf. On the other hand there is one telling circumstance in favour of the case put forward by the judgment debtors. We find from a perusal of the bid lists prepared on August 29, 1977 and September 1, 1977 that as many as eight persons participated in the auction on August 29, 1977 and offered their bids while only four persons participated in the auction on September 1, 1977 and offered their bids, and, what is more important, not one of the eight persons who offered their bids on August 29, 1977 was present to offer his bid on September 1, 1977. It is a very curious and significant circumstance. It could not be that those persons who exhibited the desire to purchase the property on August 29, 1977 en masse decided not to participate in the auction on - 31 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 September 1, 1977. In our opinion, the legitimate inference to be drawn from the circumstance is that the bidders who participated in the auction on August 29, 1977 were not aware that the auction was being continued on September 1, 1977. This could only be if as alleged by the judgment debtors there was no announcement on August 29, 1977 by the court auctioneer that the auction would be continued on September 1, 1977. One of the bidders, who participated in the auction on August 29, 1977, was examined as a witness by the judgment debtors. His bid was in fact the highest bid that was offered on August 29, 1977. He stated in his evidence that after he made his bid for Rs 2,90,000, he was informed that the time for the auction was over and that the auction would be held again after notice for the same was published in the newspaper. He said, “My last bid was for Rs 2,90,000 when I was informed that as the time is over, the auction would be re-held after notice for the same as published in the newspaper. I do not remember whether the date for the next auction was announced on that day or not. The auctioneer who was present there had told the bidders that as the time was over the sale will be held at a later date after notice for the sale is published”. Relying on the sentence that he did not remember whether the date for the next auction was announced on that date or not, it was sought to be made out that the witness was prevaricating and that an announcement must have been made on that very date about the next date of auction. We do not think that there was any attempt by the witness to prevaricate. What the witness meant was made very clear in the very next sentence when he stated that the auctioneer told the bidders that the sale would be held at a later date after the notice for the sale was published. When he was further questioned in cross- examination, he stated, “Thereafter we were talking amongst ourselves about the next date on which the auction was to be held. However, the next date was - 32 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 not announced. I had come to know about the auction to be held on August 29, 1977 from the publication in the newspaper as well as from my personal friends. . . . The next date was not informed to me by Mr Suraj Prakash. It is wrong to suggest that the auctioneer had announced the date after the bidding was over on August 29, 1977. . . . In fact no date was announced on that date”. The evidence of this witness is strongly supported by the circumstance already noticed by us that none of the bidders who participated in the auction on August 29, 1977, participated in the auction on September 1, 1977. There is no conceivable reason as to why this witness who was the highest bidder on August 29, 1977 should have refrained from participating in the auction on September 1, 1977. The evidence of this witness is practically unrebutted since neither the auctioneer nor any of the bidders who participated in the auction on August 29, 1977 was examined on behalf of the auction purchaser. The auction purchaser examined himself and stated that he was present at the auction on August 29, 1977 and that at that time, the auctioneer announced that the auction would be continued on September 1, 1977. We do not have the slightest doubt that he is not a truthful witness. He was unable to explain why he did not offer any bid if he was present at the auction on August 29, 1977. He was also unable to give the name of a single person who offered a bid on August 29, 1977. 4. Both the learned Single Judge of the High Court and the Division Bench appeared to have been carried away by the note of the auctioneer in the bid list of August 29, 1977 ignoring the material fact of the non-examination of the auctioneer as a witness by the auction purchaser. The judgment debtors put the auction purchaser on notice of their case in their objections to the sale. They adduced evidence in support of their case. It was the duty of the auction - 33 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 purchaser to adduce the best evidence in support of his case by examining the auctioneer. He refrained from doing so. In those circumstances it was not open to the courts below to rely upon the note made by the auctioneer in the bid list when the substance of the note was itself under challenge. In addition, we have already mentioned the other outstanding circumstance of the case that not one of the eight bidders who participated in the auction on August 29, 1977 was present at the auction on September 1, 1977. We are led to the irresistible conclusion that no announcement was made on August 29, 1977 that the auction would be continued on September 1, 1977. We are also satisfied that the price of Rs 4,37,000 for a 28/48 share of a cinema in New Delhi standing on land of the extent of 5000 sq. yard can hardly be considered an adequate price. No doubt the auction purchaser stated in his evidence that Shalimar cinema is situated in a poor locality, eclipsed by a flyover and was in shambles. He denied the suggestion that Shalimar cinema was situated on the best road and in one of the finest colonies of South Delhi. On the other hand, Swaranjit Singh who was the highest bidder on September 1, 1977 stated that he went prepared to the auction to purchase 28/48 share for Rs twelve lakhs. We do not have any doubt that even in 1977 when prices were not as high as they are today, the price of Rs 4,37,000 for 28/48 share of the property in question was totally inadequate. We have, therefore, no option but to set aside the sale held on September 1, 1977. The appeal is accordingly allowed. The order of the learned Single Judge and the Division Bench of the High Court are set aside and the sale held on September 1, 1977 is set aside. No costs. - 34 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 13.18. By relying on M/s Shalimar Cinema’s case, he submits that it is the duty of the Court to ensure that the requirements of Rule 66 of Order 21 are complied with. 13.19. His further submission is that if sale is conducted for an inadequate sale consideration, the Court would be dutybound to set-aside the sale since the interest of the Judgment Debtor would be affected irretrievably. 13.20. The decision of the Hon’ble Apex Court in Ram Kishun and Others vs. State of Uttar Pradesh and Others.5, more particularly paras 17 to 22 thereof which are reproduced hereunder for easy reference: 17. Therefore, it becomes a legal obligation on the part of the authority that property be sold in such a manner that it may fetch the best price. Thus essential ingredients of such sale remain a correct valuation report and fixing the reserve price. In case proper valuation has not been made and the reserve price is fixed taking into consideration the inaccurate valuation report, the intending buyers may not come forward treating the property as not worth purchase 5 2012(11)SCC 511 - 35 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 by them, as a moneyed person or a big businessman may not like to involve himself in small sales/deals. Valuation and reserve price 18. The word “value” means intrinsic worth or cost or price for sale of a thing/property. (Vide Union of India v. Bombay Tyre International Ltd. [(1984) 1 SCC 467 : 1984 SCC (Tax) 17] and Gurbachan Singh v. Shivalak Rubber Industries [(1996) 2 SCC 626 : AIR 1996 SC 3057] .) 19. In State of U.P. v. Shiv Charan Sharma [1981 Supp SCC 85 : AIR 1981 SC 1722] this Court explained the meaning of “reserve price” explaining that it is the price with which the public auction starts and the auction bidders are not permitted to give bids below the said price i.e. the minimum bid at auction. 20. In Anil Kumar Srivastava v. State of U.P. [(2004) 8 SCC 671] this Court considered the scope of fixing the reserve price and placing reliance on its earlier judgment in Duncans Industries Ltd. v. State of U.P. [(2000) 1 SCC 633] , explained that reserve price limits the authority of the auctioneer. The concept of the reserve price is not synonymous with valuation of the property. These two terms operate in different spheres. An invitation to tender is not an offer. It is an attempt to ascertain whether an offer can be obtained with a margin. The valuation is a question of fact, it should be fixed on relevant material. The difference between the “valuation” and “reserve price” is that, fixation of an upset price may be an indication of the probable price which the property may fetch from the point of view of intending bidders. Fixation of the reserve price does not preclude the claimant from adducing proof that the land had been sold for a low price. 21. In Desh Bandhu Gupta v. N.L. Anand [(1994) 1 SCC 131] this Court held that in an auction-sale and in execution of the civil court's decree, the Court has - 36 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 to apply its mind to the need for furnishing the relevant material particulars in the sale proclamation and the records must indicate that there has been application of mind and principle of natural justice had been complied with. (See also Gajadhar Prasad v. Babu Bhakta Ratan [(1973) 2 SCC 629 : AIR 1973 SC 2593] , S.S. Dayananda v. K.S. Nagesh Rao [(1997) 4 SCC 451] , D.S. Chohan v. State Bank of Patiala [(1997) 10 SCC 65] and Gajraj Jain v. State of Bihar [(2004) 7 SCC 151] .) 22. In view of the above, it is evident that there must be an application of mind by the authority concerned while approving/accepting the report of the approved valuer and fixing the reserve price, as the failure to do so may cause substantial injury to the borrower/guarantor and that would amount to material irregularity and ultimately vitiate the subsequent proceedings. 13.21. By relying on Ram Kishun’s case, he submits that the valuation and fixation of reserve price is a very important part of conducting an auction. There is a legal obligation on part of the Authority that the property be sold in such a manner that it fetches best price while carrying out a valuation all the concerned facts have to be taken into consideration. 13.22. The decision of the Hon’ble Apex Court in Kerala Financial Corporation vs. Vincent - 37 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 Paul and Another.6, more particularly para 20 thereof which are reproduced hereunder for easy reference: 20. We have already concluded that the decree for specific performance granted by the High Court cannot be sustained. We also observed in the earlier part of our judgment that though KFC has initiated proceedings under Section 29 of the Act, admittedly, the State has not framed rules or guidelines in the form of executive instructions for sale of properties owned by them. Till such formation of rules or guidelines or orders as mentioned above, we direct KFC to adhere to the following directions for sale of properties owned by it: (i) The decision/intention to bring the property for sale shall be published by way of advertisement in two leading newspapers, one in vernacular language having sufficient circulation in that locality. (ii) Before conducting sale of immovable property, the authority concerned shall obtain valuation of the property from an approved valuer and in consultation with the secured creditor, fix the reserve price of the property and may sell the whole or any part of such immovable secured asset by any of the following methods: (a) by obtaining quotations from the persons dealing with similar secured assets or otherwise interested in buying such assets; or (b) by inviting tenders from the public; or (c) by holding public auction; or (d) by private treaty. 6 2011(4) SCC 171 - 38 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 Among the above modes, inviting tenders from the public or holding public auction is the best method for disposal of the properties belonging to the State. (iii) The authority concerned shall serve to the borrower a notice of 30 days for sale of immovable secured assets. (iv) A highest bidder in public auction cannot have a right to get the property or any privilege, unless the authority confirms the auction-sale, being fully satisfied that the property has fetched the appropriate price and there has been no collusion between the bidders. (v) In the matter of sale of public property, the dominant consideration is to secure the best price for the property to be sold. This can be achieved only when there is maximum public participation in the process of sale and everybody has an opportunity of making an offer. It becomes a legal obligation on the part of the authority that property be sold in such a manner that it may fetch the best price. (vi) The essential ingredients of sale are correct valuation report and fixing the reserve price. In case proper valuation has not been made and the reserve price is fixed taking into consideration the inaccurate valuation report, the intending buyers may not come forward treating the property as not worth purchase by them. (vii) Reserve price means the price with which the public auction starts and the auction-bidders are not permitted to give bids below the said price i.e. the minimum bid at auction. (viii) The debtor should be given a reasonable opportunity in regard to the valuation of the property sought to be sold, in absence thereof the sale would suffer from material irregularity where the debtor suffers substantial injury by the sale. - 39 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 13.23. By relying on Vincent Paul’s case, he submits that before conducting sale of the immovable property, valuation has to be obtained from approved valuer and in consulation with secured creditor, reserve price for the property was to be fixed with a notice being served on the borrower in relation thereto. If the Judgment debtor were not given a reasonable opportunity as regards the valuation of the property, the sale would suffer from material irregularity. 13.24. The decision of the Hon’ble Apex Court in Nani Gopal Paul vs. T. Prasad Singh and Others.7, more particularly para 4 thereof which are reproduced hereunder for easy reference: 4. We are of the view that we can take suo motu judicial notice of the illegality pointed out by the Division Bench, committed by the Single Judge of the High Court in bringing the properties to sale. 7 1995(3) SCC 579 - 40 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 Accordingly, we are of the view that the circumstances are sufficient to vitiate the validity of the sale conducted by the court receiver as approved by the learned Single Judge. Confirmation of sale was illegal. Though, as contended by Shri Ganesh that normally an application under Order 21, Rule 89 or Rule 90 or under Section 48 CPC need to be filed within limitation to have the sale conducted by the court set aside and that procedure need to be insisted upon, we are of the view that this Court or appellate court would not remain a mute or helpless spectator to obvious and manifest illegality committed in conducting court sales. We are informed and it is not disputed that the appellant had deposited only Rs 5 lakhs and balance amount was assured to be deposited only after delivery of possession. That also would be illegal. 13.25. By relying on Nani Gopal Paul’s case, he submits that this Court ought not to remain a mute or helpless spectator to obvious and manifest legality committed in conducting the sale. The value of property being more than Rs.Four crores has been sold for Rs.1.20 crores which causes tremendous injustice to the petitioners and as such, he submits that this Court ought to intervene in the matter. - 41 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 13.26. The decision of the Hon’ble Apex Court in K. Devadas Kumar vs. A. Umesh and Others8, more particularly paras 15, 16 and 17 thereof which are reproduced hereunder for easy reference: 15. In view of the law laid down by the Apex Court in the above case regarding trust reposed with the fifth respondent coupled with the statutory duty cast upon him it is incumbent upon the sale officer to follow the mandatory procedure as laid down under the Rules and law laid down by the Apex Court in the cases referred to supra to get market value of the immovable property which would be sold in public auction for realisation of awarded amount in favour of the second respondent bank. For the reasons stated supra, we accept the finding of fact recorded in the order of the Learned Single Judge regarding non- following the mandatory procedure as contemplated under Rule 34(3) and 38(2)(d) and (g) of the Rules by the fifth respondent and respondent No. 3 in not giving wide publicity for sale of the property in question. The auction purchaser was only the person participated in the public auction therefore his bid was accepted by fifth respondent. The amount for which he had bid cannot be construed as the true market value of the property in question. For this reason also the Learned Single Judge after perusal of the record of respondents No. 3 and 5 having regard to the rights involved in immovable property of the first respondent herein has rightly exercised his discretionary power and quashed the confirmation order of sale and sale certificate issued in favour of fifth respondent in respect of the property, which 8 2006 SCC Online Kar 348 - 42 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 cannot be found fault with by this Court in exercise of our jurisdiction and power in this Appeal. 16. The Learned Single Judge after quashing the confirmation order and issuance of the sale certificate issued in Form No. 10 dated 11.8.2005, remitted back the matter to the competent authority viz. respondent No. 3 to re-do it and to take appropriate decision in accordance with law. While directing so, he has also clarified in the operative portion of the order that if the first respondent herein is willing to pay the entire award amount with interest and other expenses, it is open for the second respondent-Bank to consider his request and settle the matter in full and final settlement of the claim. In this regard, the Learned Counsel Mr. Keshav Bhat appearing on behalf of first respondent submitted that during pendency of the writ petition first respondent wanted to deposit the awarded amount with the Bank but the same was not received by it. Now the first respondent is willing to deposit the same before the Bank. In this view of the matter and also for the reason that Learned Single Judge after recording a finding of fact on the basis of facts pleaded and recorded produced he has held that the sale in the public auction is not in conformity with the provisions of the Act and the rules. Therefore, the question of remanding the matter to the competent authority viz. respondent No. 3 to take a decision in that regard afresh does not arise and therefore that portion of the remand order is set aside as the same is wholly unnecessary. 17. Since the first respondent has come forward to deposit the amount with the second respondent, if it is deposited within four weeks from the date of receipt of this order the same may be accepted with interest payable on the awarded amount. Otherwise, it is open to the second respondent to recover the same in accordance with the provisions of the Act and the Rules by executing the Award against the first respondent. - 43 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 13.27. By relying on Devadas Kumar’s case, he submits that if this Court were to come to a conclusion that the sale has been conducted for lesser value, then this Court could always quash confirmation of sale and sale certificate, more so when the sale is not in conformity with the Act and Rules. 13.28. The decision of the Hon’ble Apex Court in Satyanarain Bajoria and Another vs. Ramnarain Tibrewal and Another9, more particularly paras 15 and 17 thereof which are reproduced hereunder for easy reference: 15. The lower appellate court after assuming that there was no proper service of notice under Order 21 Rule 54 of the Code of Civil Procedure went on to the question of judgment-debtor's having not pleaded any substantial loss or injury. It will be noticed that it was a case of typical money lender who has evil-eye to grab the property of the judgment-debtor somehow or the other. He allows the first application for execution to be dismissed; waits for practically three years to file another execution application claiming a sum of Rs 350 only; sees to it that judgment-debtor is kept ignorant of the proceedings in court; obtains 9 (1993) 4 SCC 414 - 44 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 permission to himself buy the property; gets the property sold for recovery of petty amount of Rs 649.45ps and buys the property himself. This again is a typical illustration of fraudulent conduct of decree- holder. In such cases the court will even presume loss and substantial injury to the judgment-debtor. In the present case there was evidence of value of the property and both the parties had led evidence in this behalf and it was too late for the lower appellate court to blame the executing court for recording evidence as to the valuation at that stage. The fraud permeates the whole proceedings. At no stage was the judgment-debtor made aware of the pending execution application till even the confirmation of sale and purchase of the property by the decree-holder himself. 17. Learned counsel for the decree-holder submitted that these are questions of fact and since the High Court dismissed the revision petition in limine this Court should not interfere with the questions of fact. If it was merely a case of questions of fact proved on record, learned counsel for the decree-holder would have been right. It appears lower appellate court had no knowledge whatsoever of how even notice under Order 21 Rule 22 of the Code was required to be served or the evidence in relation thereto being led in proceedings for setting aside of the sale at the instance of the judgment-debtor. The lower appellate court could not read the order sheet or proceedings purporting to be under Order 21 Rule 22 of the Code while dealing with proceedings under Order 21 Rule 90 of the Code and hold that the notices have been served. Lower appellate court again was mixing up the service on judgment-debtor of notice under Order 21 Rule 54 of the Code and of proclamation of sale. The lower appellate court again was ignoring the importance of notice under Order 21 Rule 54(1-A) and (2) to enable the judgment-debtor to have notice of proceedings for settlement of terms of proclamation - 45 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 under Order 21 Rule 66 of the Code. It is true that now it has been specifically clarified by the Explanation to Rule 90 of Order 21 of the Code that “the mere absence of, or defect in, attachment of the property sold shall not, by itself, be a ground for setting aside a sale under this rule”. But if the judgment-debtor is kept totally ignorant of the execution proceedings right from the date of execution application till sale, it cannot be merely called a mere irregularity in attachment and thus of no consequence. Proceedings under Order 21 Rule 66 of the Code for settlement of terms of proclamation of sale are very material for both the parties, much more for the judgment-debtor as it is well known that the decree-holder always tries to undervalue the property whereas the judgment-debtor tries to overvalue the property. However, provisions are made in the Code in sub-rule (2) of Rule 66 of Order 21 that the sale proclamation shall be drawn up after notice to both the decree-holder as well as the judgment-debtor and shall state the time and place of sale and other requirements mentioned therein. No notice was given under Order 21 Rule 54(1-A) of the Code which was mandatory for the court. In any case no notice for settlement of terms of proclamation of sale was served on the judgment-debtor personally as contemplated by sub-rule (2) of Rule 66 of Order 21 of the Code. 13.29. By relying on Satyanarain Bajoria’s case, he submits that when there is a fraudulent conduct of the decree holder which causes loss and injury to the Judgment debtor and when the Judgment debtor is kept in the dark about the - 46 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 execution proceedings, as also when the property is undervalued, it would be mandatory for the Court to set-aside the sale. 13.30. On all the above grounds, he submits that the above petition is required to be allowed and the relief sought for to be granted. 14. Sri.Abhishek, and Smt.Gowhar Unnisa learned counsel appearing for the respondent-Bank would submit that, 14.1. The petitioners are chronic defaulters. Though the present petition has been filed as regard one loan, the petitioners have availed three loans and have defaulted on all the three loans. The principal amount of loan being Rs.67,50,000/-, the petitioners are taking advantage of their default and have not permitted the Bank to recover the monies. 14.2. Despite service of notice on the petitioners, they have not appeared before the DRCS resulting in the award being passed. The fact - 47 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 remains that the person who has received the notice is the son of the petitioners, whether he is a minor or not would not be material. It is for the petitioners to establish that on receipt of the notice by the minor son, he did not bring it to the notice of the parents, i.e., the petitioners, the minor ought not have received the notice is the submission made. Once the notice is sent to the address of the recipient, properly marked and stamped, the notice is deemed to have been served on the addressee. 14.3. He submits that the chronic default on part of the petitioners has continued from the year 2016 and despite such a long lapse of time, the respondent-Bank has been unable to recover the dues owed to it and it is in that background that the property was brought for auction. 14.4. His further submission is that various notices have been issued from time to time. Form No.4 issued on 25.06.2021 was served on Kushal on - 48 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 06.07.2021. Form No. 7 issued on 25.08.2021 was served on the second petitioner on 01.09.2021. The first auction notice dated 30.12.2022 issued to the address of the petitioner was refused to be accepted, as such, it is deemed service in terms of Section 27 of the General Causes Act. The second auction notice in terms of form 8 and 9 dated 06.07.2023 was served on 15.07.2023 on Kushal. The third auction notice in form 8 and 9 dated 25.09.2023 was served on 03.10.2023 on the second petitioner. Thus, she submits that the petitioners have intentionally sought to refuse the notice and or have got the notice accepted by their minor son to try and take a fraudulent contention. 14.5. Be that as it may, Form No.7 having been served on petitioner No.2 and Form No.8 and 9 for the third auction also being served on the petitioner No.2, they were aware of the award - 49 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 which had been passed long ago, as far back as on 01.09.2021 and thereafter chose not to do anything. They did not challenge the award before the Appellate Tribunal or come forward to make payment of due amounts. It is only after the auction purchaser had submitted a bid and a sale certificate has been issued and consequently sale deed has been executed that the petitioners have approached the Appellate Tribunal challenging the award. During all this time the petitioners have not paid any amounts on that ground she submits that the conduct of the petitioners is completely malafide. 14.6. As regards the valuation of the property, she submits that the valuation is proper and correct inasmuch as a Valuer has valued the property and submitted a report on 25.08.2023 in terms whereof on examination of the property, the Valuer has reported that the total market value of the property including land and building - 50 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 would be Rs.1,52,42,562/- and distress value has been fixed at 80% of the market value at Rs.1,21,94,050/- and as such, the contention of the petitioners that the valuation is higher is not established and is contrary to the valuation report already on record. 14.7. 14.7. She submits the valuation of Rs.4 crore as contended by the petitioners is also not correct inasmuch as even for the valuation of 1,20,00,000/- on two earlier occasions there were no bidders and it is only on third occasion that the auction purchaser has bid for the property. If at all a property valued at Rs.Four crores was being auctioned at 1.2 crores, there would have been many more persons who would have bid for the property at the auction and would have been so successful. The fact that there were no bids received for the first and second auction and it was sold in the third auction indicates that the valuation made by - 51 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 the Valuer is probably on the higher side if not proper and correct. 14.8. Thus, she submits that the notice having been served properly, valuation having been made, the petitioners being fully knowledgeable about all the proceedings from the time of initiation of the dispute before the Registrar of Cooperative Societies till the sale of the property in auction, there are no equities in favour of the petitioners. 14.9. The petitioners are only delaying the proceedings, this court ought not to entertain the same but ought to dismiss the petition. 14.10. She relies on the decision of the Hon’ble Apex Court in Harihar Banerji and Others vs. Ramsashi Roy and Others10, more particularly para 40 thereof which are reproduced hereunder for easy reference: 10 Privy Council, (From the High Court of Judicature of Fort William in Bengal) - 52 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 40. Next and lastly as to the service of the notice to quit. The 106th section of the Transfer of Property Act, 1882, only requires that such a notice should be tendered or delivered to the party intended to be bound by it either personally or to one of his family or servants at his residence, or if such tender or delivery be not practicable, affixed to a conspicuous part of the property. The personal tender or delivery may take place anywhere: the vicarious tender or delivery must take place at the residence of the person intended to be bound by the notice. Well, in the case of joint tenants, each is intended to be bound, and it has long ago been decided that service of a notice to quit upon one joint tenant is prima facie evidence that it has reached the other joint tenants : Macartney v. Crick (1805) 5 Esp. 196; Deo d. Bradford, v. Watkins (1806) 7 East 551; Pollock v. Kelly (1875) 6 I.C.L.R. 367. 14.11. By relying on Harihar Banerji’s case, it is submitted that notice ought to be served to the intended party personally at his/her residence or to their family members or servants, further it may also be affixed at a fairly visible part of the property. In this case the notice not only having been personally delivered to the Petitioner’s residence, it was also personally handed over to a family member and is thus conclusive proof of service and a prima-facie - 53 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 evidence of the Petitioner’s knowledge of the notice. 14.12. On the bais of the above submissions she submits that the petition is required to be dismissed. 15. Sri.N.S.Srihari, learned counsel appearing for the auction purchaser would submit that 15.1. the auction purchaser's interest has to be protected, the auction having been completed, the sale certificate issued in favour of the auction purchaser, who is now the absolute owner of the property, the due process of law having been followed, the auction purchaser being a bonafide purchaser for value in a public auction conducted by the Bank, the interest of the auction purchaser cannot be compromised. 15.2. The sale executed in favour of the auction purchaser cannot be set aside, even if the award were to be set aside, the matter could - 54 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 only be limited for consideration of the interse dispute between the Bank and the borrower, the auction purchaser's interest can never be affected, let alone adversely, for any fault on part of the Bank since the auction purchaser is required to be treated on different footing and his rights are required to be protected, so that no adverse impact would occur in future actions. 15.3. In this regard, he relies on the following decisions: 15.4. The decision of the Hon’ble Apex Court in Padanathil Ruqmini Amma vs. P.K. Abdulla11, more particularly paras 2, 4, 8, 11 and 13 thereof which are reproduced hereunder for easy reference: 2. After purchase the suit property was given on lease by Mohammed Haji to one Raghavan Nair on 2-5-1946. Raghavan Nair in turn sold his rights in the suit property to one Ayyappan who, in turn, sold his rights to one Raman Menon. Raman Menon sold 11 (1993) 4 SCC 414 - 55 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 his rights in the said property on 3-10-1950 in favour of the respondent, P.K. Abdulla. 4. After the ex parte decree was set aside, proceedings by way of restitution were started by the first defendant and Karnavan of the Tarwad by filing EP No. 29 of 1959. All the properties which had been taken possession of by Mohammed Haji in execution of the ex parte decree and of which restitution was sought were set out in a schedule in the proceedings for restitution. Item No. 6 in EP No. 29 of 1959 was the suit property. EP No. 29 of 1959 had originally contained a prayer for only symbolic re-delivery of the properties which had been taken possession of in execution by Mohammed Haji. But the application was subsequently amended and actual delivery was asked for. 8. After remand the trial court found that the Tarwad had obtained possession of the property pursuant to the restitution proceedings. It also found that the respondent who was the plaintiff therein had established his title to the suit property and his right to recover possession. It accordingly decreed the suit allowing recovery of possession. This finding was confirmed by the district court and by the High Court. Hence the present appeal has come before us. 11. In the present case, as the ex parte decree was set aside, the judgment-debtor was entitled to seek restitution of the property which had been sold in court auction in execution of the ex parte decree. There is no doubt that when the decree-holder himself is the auction-purchaser in a court auction sale held in execution of a decree which is subsequently set aside, restitution of the property can be ordered in favour of the judgment-debtor. The decree-holder auction-purchaser is bound to return the property. It is equally well settled that if at a court auction sale in execution of a decree, the - 56 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 properties are purchased by a bona fide purchaser who is a stranger to the court proceedings, the sale in his favour is protected and he cannot be asked to restitute the property to the judgment-debtor if the decree is set aside. The ratio behind this distinction between a sale to a decree-holder and a sale to a stranger is that the court, as a matter of policy, will protect honest outsider purchasers at sales held in the execution of its decrees, although the sales may be subsequently set aside, when such purchasers are not parties to the suit. But for such protection, the properties which are sold in court auctions would not fetch a proper price and the decree-holder himself would suffer. The same consideration does not apply when the decree-holder is himself the purchaser and the decree in his favour is set aside. He is a party to the litigation and is very much aware of the vicissitudes of litigation and needs no protection. 13. As far back as in 1888, however, a distinction was made between sales to decree-holders and sales to outsider purchasers. In the case of Zain-Ul- Abdin Khan v. Mohd. Asghar Ali Khan [ILR (1888) 10 All 166 : 15 IA 12] , the Privy Council held that there was a great distinction between the decree- holders who come in and purchase under their own decree which is afterwards reversed on appeal and the bona fide purchasers who come in and buy at the sale in execution of a decree to which they are not parties and at a time when the decree is a valid decree and when this order for sale is a valid order. It held that the sales in favour of bona fide purchasers who were not parties to the decree at a time when the decree was valid would be protected. In the case before the Privy Council there were three sets of purchasers. Some of the defendants who had purchased were the decree-holders. Some persons had purchased from decree-holders or came under them, while others were merely purchasers in - 57 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 execution and strangers to the decree upon which the execution had issued. The Privy Council said that the decree-holder purchasers as well as persons who came in under them are in the same position and they have to be classed under the head of decree- holders as against strangers to the decree. The Privy Council was required to consider only the case of strangers to the decree. But from the judgment it is quite clear that it categorised the decree-holder auction-purchaser as well as those claiming under such decree-holder purchasers in the same category of decree-holders. This category, therefore, would be liable to render restitution. 15.5. By relying on Padanathil Ruqmini Amma’s case, he argues that a property sold to a bona- fide purchaser in an auction-sale which is in furtherance of executing a decree is protected and the purchaser cannot be asked to restitute the property, moreso, in light of the decree being valid at the time of the auction-sale. The auction-purchaser in the instant petition having purchased the property legally in furtherance of a court decree, while such decree continued to be valid, would regard him as a bona-fide - 58 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 purchaser and is thus protected from any restitution thereof. 15.6. The decision of the Hon’ble Apex Court in Janak Raj vs. Gurdial Singh and Others12, more particularly paras 2, 3, 4, 5, and 27 thereof which are reproduced hereunder for easy reference: 2. The question involved in this appeal is, whether a sale of immovable property in execution of a money decree ought to be confirmed when it is found that the ex parte decree which was put into execution has been set aside subsequently. 3. The facts are simple. One Swaran Singh obtained an ex parte decree on February 27, 1961 against Gurdial Singh for Rs 519. On an application to execute the decree, a warrant for the attachment of a house belonging to the judgment-debtor was issued on May 10, 1961. At the sale which took place, the appellant before us became the highest bidder for Rs 5100 on December 16, 1961. On the 2nd of January 1962, the judgment-debtor made an application to have the ex parte decree set aside. On January 20, 1962 he filed an objection petition against the sale of the house on the ground that the house which was valued at Rs 25,000 had been auctioned for Rs 5000 only and that the sale had not been conducted in a proper manner inasmuch as there was no due publication of it and the sale too was not held at the proper hour. By an order dated April 19, 1962, the executing court stayed the 12 1966 SCC ONLINE SC 63 - 59 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 execution of the decree till the disposal of the application for setting aside the ex parte decree. On October 26, 1962 the ex parte decree against the defendant-judgment-debtor was set aside. On November 3, 1962 the auction-purchaser made an application for revival of the execution proceedings and for confirmation of the sale under Order 21 of the Rule 92 of the Code of Civil Procedure. On November 7, 1962 the judgment-debtor filed an objection thereto contending that the application for revival of execution proceedings was not maintainable after setting aside the ex parte decree and that the auction-purchaser was in conspiracy and collusion with the decree-holder and as such not entitled to have the sale confirmed. It is to be noted here that the case of collusion was not substantiated. On August 31, 1963 the executing court overruled the objection of the judgment-debtor and made an order under Order 21 Rule 92 confirming the sale. This was affirmed by the first appellate court. On second appeal to a Single Judge of the Punjab High Court, the auction-purchaser lost the day. An appeal under clause 10 of the Letters Patent in the Punjab High Court met the same fate. Hence this appeal. 4. Before referring to the various decisions cited at the Bar and noted in the judgment appealed from, it may be useful to take into consideration the relevant provisions of the Code of Civil Procedure. So far as sales of immovable property are concerned, there are some special provisions in Order 21 beginning with Rule 82 and ending with Rule 103. If a sale had been validly held, an application for setting the same aside can only be made under the provisions of Rules 89 to 91 of Order 21. As is well known, Rule 89 gives a judgment-debtor the right to have the sale set aside on his depositing in court a sum equal to five per cent of the purchase money fetched at the sale besides the amount specified in the proclamation of sale as that for the recovery of which the sale was - 60 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 ordered, less any amount which may, since the date of sale, have been received by the decree-holder. Under sub-rule (2) of Rule 92 the court is obliged to make an order setting aside the sale if a proper application under Rule 89 is made accompanied by a deposit within 30 days from the date of sale. Apart from the provision of Rule 89, the judgment-debtor has the right to apply to the court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it provided he can satisfy the court that he has sustained substantial injury by reason of such irregularity or fraud. Under Rule 91 it is open to the purchaser to apply to the court to set aside the sale on the ground that the judgment- debtor had no saleable interest in the property sold. Rule 92 provides that where no application is made under any of the Rules just now mentioned or where such application is made and disallowed the court shall make an order confirming the sale and thereupon the sale shall become absolute. Rule 94 provides that where the sale of immovable property has become absolute, the court must grant a certificate specifying the property sold and the name of the person who at the time of sale was declared to be the purchaser. Such certificate is to bear date of the day on which the sale becomes absolute. Section 65 of the Code of Civil Procedure lays down that where immovable property is sold in execution of a decree and such sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when it is sold and not from the time when the sale becomes absolute. The result is that the purchaser's title relates back to the date of sale and not the confirmation of sale. There is no provision in the Code of Civil Procedure of 1908 either under Order 21 or elsewhere which provides that the sale is not to be confirmed if it be found that the decree under which the sale was ordered has been reversed before the confirmation of sale. It does not seem ever to have been doubted that once - 61 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 the sale is con-firmed the judgment-debtor is not entitled to get back the property even if he succeeds thereafter in having the decree against him reversed. The question is, whether the same result ought to follow when the reversal of the decree takes place before the confirmation of sale. 5. There does not seem to be any valid reason for making a distinction between the two cases. It is certainly hard on the defendant-judgment-debtor to have to lose his property on the basis of a sale held in execution of a decree which is not ultimately upheld. Once however it is held that he cannot complain after confirmation of sale, there seems to be no reason why he should be allowed to do so because the decree was reversed before such confirmation. The Code of Civil Procedure of 1908 contains eleborate provisions which have to be followed in cases of sales of property in execution of a decree. It also lays down how and in what manner such sales may be set aside. Ordinarily, if no application for setting aside a sale is made under any of the provisions of Rules 89 to 91 of Order 21, or when any application under any of these Rules is made and disallowed, the court has no choice in the matter of confirming the sale and the sale must be made absolute. If it was the intention of the legislature that the sale was not to be made absolute because the decree had ceased to exist, we should have expected a provision to that effect either in Order 21 or in Part II of the Code of Civil Procedure of 1908 which contains Sections 36 of 74 (inclusive). 27. For the reasons already given and the decisions noticed, it must be held that the appellant-auction- purchaser was entitled to a confirmation of the sale notwithstanding the fact that after the holding of the sale the decree had been set aside. The policy of the legislature seems to be that unless a stranger auction-purchaser is protected against the vicissitudes of the fortunes of the suit, sales in - 62 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 execution would not attract customers and it would be to the detriment of the interest of the borrower and the creditor alike if sales were allowed to be impugned merely because the decree was ultimately set aside or modified. The Code of Civil Procedure of 1908 makes ample provision for the protection of the interest of the judgment-debtor who feels that the decree ought not to have been passed against him. On the facts of this case, it is difficult to see why the judgment-debtor did not take resort to the provisions of Order 21 Rule 89. The decree was for a small amount and he could have easily deposited the decretal amount besides 5 per cent of the purchase money and thus have the sale set aside. For reasons which are not known to us he did not do so. 15.7. By placing reliance on Janak Raj’s case, he submits that once a sale is confirmed in execution of a decree, such a sale continues to stand confirmed even if the judgement-debtor succeeds in having the decree against him reversed in the future. The legislature clearly comes to the rescue of a stranger auction- purchaser to protect interests of both the creditor and the borrower. Hence, in the instant case, even if the Petitioner were to succeed in having the decree set-aside, Respondent No. 5 - 63 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 stands statutorily protected in the validity of the sale and hence the outcome of this Petition would have no bearing in the status of ownership/title in favour of Respondent No.5. 15.8. The decision of the Hon’ble Apex Court in Janatha Textiles and Others vs. Tax Recovery Officer and Anr13, more particularly paras 17 and 18 thereof which are reproduced hereunder for easy reference: 17. There is another very significant aspect of this case, which pertains to the rights of the bona fide purchaser for value. It was asserted that Respondent 2 is a bona fide purchaser of the property for value. It was further stated that he had purchased the said property in a valid auction and he cannot be disturbed according to the settled legal position. 18. It is an established principle of law, that a third party auction-purchaser's interest, in the auctioned property continues to be protected, notwithstanding that the underlying decree is subsequently set aside or otherwise. This principle has been stated and reaffirmed in a number of judicial pronouncements by the Privy Council and this Court. Reliance has been placed on the following decisions: (i) The Privy Council in Nawab Zain-Ul-Abdin Khan v. Mohd. Asghar Ali Khan [(1887-88) 15 IA 12] for the 13 2008 12 SCC 582 - 64 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 first time crystallised the law on this point, wherein a three-Judge Bench held as follows: (IA p. 16) “A great distinction has been made between the case of bona fide purchasers who are not parties to a decree at a sale under execution and the decree- holders themselves. In Bacon's Abridgment, tit. ‘Error’ it is laid down, citing old authorities, that ‘if a man recovers damages, and hath execution by fieri facias, and upon the fieri facias the sheriff sells to a stranger a term for years, and after the judgment is reversed, the party shall be restored only to the money for which the term was sold, and not to the term itself, because the sheriff had sold it by the command of the writ of fieri facias’. … So in this case, those bona fide purchasers who were no parties to the decree which was then valid and in force, had nothing to do further than to look to the decree and to the order of sale.” (ii) In Janak Raj v. Gurdial Singh [AIR 1967 SC 608 : (1967) 2 SCR 77] the Division Bench comprising Wanchoo, J. and Mitter, J. held that in the facts of the said case the appellant auction-purchaser was entitled to a confirmation of the sale notwithstanding the fact that after the holding of the sale, the decree was set aside. It was observed : (AIR p. 613, para 24) “24. … The policy of the legislature seems to be that unless a stranger auction-purchaser is protected against the vicissitudes of the fortunes of the suit, sales in execution would not attract customers and it would be to the detriment of the interest of the borrower and the creditor alike if sales were allowed to be impugned merely because the decree was ultimately set aside or modified.” (iii) In Gurjoginder Singh v. Jaswant Kaur [(1994) 2 SCC 368] this Court relying on the judgment rendered by the Privy Council held that the status of - 65 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 a bona fide purchaser in an auction-sale in execution of a decree to which he was not a party stood on a distinct and different footing from that of a person who was inducted as a tenant by a decree-holder landlord. It was held as follows : (SCC p. 370, para 3) “3. … A stranger auction-purchaser does not derive his title from either the decree-holder or the judgment-debtor and therefore restitution may not be granted against him but a tenant who obtains possession from the decree-holder landlord cannot avail of the same right as his possession as a tenant is derived from the landlord.” (iv) In Padanathil Ruqmini Amma v. P.K. Abdulla [(1996) 7 SCC 668] this Court in para 11 observed as under : (SCC p. 672) “11. In the present case, as the ex parte decree was set aside, the judgment-debtor was entitled to seek restitution of the property which had been sold in court auction in execution of the ex parte decree. There is no doubt that when the decree-holder himself is the auction-purchaser in a court auction- sale held in execution of a decree which is subsequently set aside, restitution of the property can be ordered in favour of the judgment-debtor. The decree-holder auction-purchaser is bound to return the property. It is equally well settled that if at a court auction-sale in execution of a decree, the properties are purchased by a bona fide purchaser who is a stranger to the court proceedings, the sale in his favour is protected and he cannot be asked to restitute the property to the judgment-debtor if the decree is set aside. The ratio behind this distinction between a sale to a decree-holder and a sale to a stranger is that the court, as a matter of policy, will protect honest outsider purchasers at sales held in the execution of its decrees, although the sales may be subsequently set aside, when such purchasers are - 66 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 not parties to the suit. But for such protection, the properties which are sold in court auctions would not fetch a proper price and the decree-holder himself would suffer. The same consideration does not apply when the decree-holder is himself the purchaser and the decree in his favour is set aside. He is a party to the litigation and is very much aware of the vicissitudes of litigation and needs no protection.” In para 16, the Court further elaborated the distinction between the decree-holder auction- purchaser and a stranger who is a bona fide purchaser in auction. Para 16 reads as under : (P.K. Abdulla case [(1996) 7 SCC 668] , p. 674) “16. The distinction between a stranger who purchases at an auction-sale and an assignee from a decree-holder purchaser at an auction-sale is quite clear. Persons who purchase at a court auction who are strangers to the decree are afforded protection by the court because they are not in any way connected with the decree. Unless they are assured of title; the court auction would not fetch a good price and would be detrimental to the decree-holder. The policy, therefore, is to protect such purchasers. This policy cannot extend to those outsiders who do not purchase at a court auction. When outsiders purchase from a decree-holder who is an auction- purchaser clearly their title is dependent upon the title of decree-holder auction-purchaser. It is a defeasible title liable to be defeated if the decree is set aside. A person who takes an assignment of the property from such a purchaser is expected to be aware of the defeasibility of the title of his assignor. He has not purchased the property through the court at all. There is, therefore, no question of the court extending any protection to him. The doctrine of a bona fide purchaser for value also cannot extend to such an outsider who derives his title through a decree-holder auction-purchaser. He is aware or is expected to be aware of the nature of the title - 67 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 derived by his seller who is a decree-holder auction- purchaser.” (v) In Ashwin S. Mehta v. Custodian [(2006) 2 SCC 385] this Court whilst relying upon the aforementioned two judgments stated the principle in the following words : (SCC p. 407, para 70) “70. … In any event, ordinarily, a bona fide purchaser for value in an auction-sale is treated differently than a decree-holder purchasing such properties. In the former event, even if such a decree is set aside, the interest of the bona fide purchaser in an auction-sale is saved.” 15.9. By relying on Janatha Textile’s case, his submission is that the legal position as regards the rights of the bona-fide purchaser for value in a valid auction as stated in the above cited case laws stand reaffirmed in this case and this stand now being a settled law, this Hon’ble court would have to apply the same in the instant petition. 15.10. The decision of the Hon’ble Apex Court in T.S.Nataraj & Ors. vs. State Bank of India and Ors.14, more particularly para 16 thereof 14 W.P.NO.19756/2021 - 68 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 which are reproduced hereunder for easy reference: 16. The property was put to auction on 29-09-2021 which is the 4th time in line. Every time the petitioner had notice of the auction and did not come forward to pay the reserve price and clear the property from it being auctioned. The defence of the Bank is that opinions of two independent valuers were taken and sale notices were affixed at conspicuous places in the asset and paper publications were also made. I conclude this only to observe that the petitioner had notice of the auction that was taking place. Even then the petitioner did not protest or come forward with any offer to the Bank for clearance of the loan and therefore, the property is auctioned. The 4th respondent emerges as the successful bidder on 29-09-2021 and certificate of sale comes to be issued in favour of the 4th respondent on 07-10-2021, the same is registered before the Sub-Registrar and the 4th respondent is put in possession of the property. For close to 4 years the petitioner was given opportunity to redeem the mortgage by paying the amount. OTS was also offered to the petitioner but he has not availed it. Once having failed to avail all the benefits that the Bank wanted to grant, it cannot be seen that the petitioner now after the sale certificate is issued, to contend that he is ready and willing to pay the auction amount, as also compensate the auction purchaser. The Apex Court clearly holds that once the certificate of sale is registered, the right of the borrower to redeem the mortgage stands extinguished and thereafter there is no mortgage exists in the eye of law. - 69 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 15.11. By relying on T.S. Nataraj’s case, he submits that the Petitioner herein was well aware of the property being put to auction. The bank having carried out relevant paper publication and service of notice has rightly and properly performed its duties. The Petitioner neither protested the auction nor did endeavour to come forward with any offer to clear his dues. The sale having legally and validly being carried out, and a sale certificate being registered to that effect, the right of the petitioner to redeem the mortagaged property stands extinguished in the eyes of the law. 15.12. The decision of the Hon’ble Apex Court in K.D. Sharma vs. Steel Authority of India Limited and Ors.15, more particularly para nos. 15, 17, 24, 26, 28, & 43 thereof which are reproduced hereunder for easy reference: 15 2008 12 SCC 481 - 70 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 15. It is well settled that "fraud avoids all judicial acts, ecclesiastical or temporal" proclaimed Chief Justice Edward Coke of England before about three centuries.Reference was made by the counsel to a leading decision of this Court in S.P.Chengalvaraya Naidu (Dead) by Lrs. v. Jagannath (Dead) by Lrs. and Ors.MANU/SC/0192/1994 : AIR1994SC853 wherein quoting the above observations, this Court held that a judgment/decree obtained by fraud has to be treated as a nullity by every Court. 17. The Court defined fraud as an act of deliberate deception with the design of securing something by taking unfair advantage of another. In fraud one gains at the loss and cost of another. Even the most solemn proceedings stand vitiated if they are actuated by fraud. Fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam. 24. The jurisdiction of the Supreme Court under Article 32 and of the High Court under Article 226 of the Constitution is extraordinary, equitable and discretionary. Prerogative writs mentioned therein are issued for doing substantial justice. It is, therefore, of utmost necessity that the petitioner approaching the Writ Court must come with clean hands, put forward all the facts before the Court without concealing or suppressing anything and seek an appropriate relief. If there is no candid disclosure of relevant and material facts or the petitioner is guilty of misleading the Court, his petition may be dismissed at the threshold without considering the merits of the claim. - 71 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 26. A prerogative remedy is not a matter of course. While exercising extraordinary power a Writ Court would certainly bear in mind the conduct of the party who invokes the jurisdiction of the Court. If the applicant makes a false statement or suppresses material fact or attempts to mislead the Court, the Court may dismiss the action on that ground alone and may refuse to enter into the merits of the case by stating "We will not listen to your application because of what you have done". The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of Court by deceiving it. 28. The above principles have been accepted in our legal system also. As per settled law, the party who invokes the extraordinary jurisdiction of this Court under Article 32 or of a High Court under Article 226 of the Constitution is supposed to be truthful, frank and open. He must disclose all material facts without any reservation even if they are against him. He cannot be allowed to play 'hide and seek' or to 'pick and choose' the facts he likes to disclose and to suppress (keep back) or not to disclose (conceal) other facts. The very basis of the writ jurisdiction rests in disclosure of true and complete (correct) facts. If material facts are suppressed or distorted, the very functioning of Writ Courts and exercise would become impossible. The petitioner must disclose all the facts having a bearing on the relief sought without any qualification. This is because, "the Court knows law but not facts". 43. 'Strongly disapproving' the explanation put forth by the petitioner and describing the tactics adopted by the Federation as 'abuse of process of court', this Court observed: - 72 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 There is no doubt left in our minds that the petitioner has not only suppressed material facts in the petition but has also tried to abuse judicial process. Apart from misstatements in the affidavits filed before this Court, the petitioner Federation has clearly resorted to tactics which can only be described as abuse of the process of court. The simultaneous filing of writ petitions in various High Courts on the same issue though purportedly on behalf of different associations of the Officers of the Bank, is a practice which has to be discouraged. Sri Sachhar and Sri Ramamurthy wished to pinpoint the necessity and importance of petitions being filed by different associations in order to discharge satisfactorily their responsibilities towards their respective members. We are not quite able to appreciate such necessity where there is no diversity but only a commonness of interest. All that they had to do was to join forces and demonstrate their unity by filing a petition in a Single Court. It seems the object here in filing different petitions in different Courts was a totally different and not very laudable one. 15.13. By relying on K.D. Sharma’s case, his submission is that an act of suppressing material facts amounts to a fraud played on the Court, and any party approaching the Court especially under the writ jurisdiction ought to be truthful, frank and open, the petitioners in this regard having suppressed facts relating to - 73 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 multiple defaulting of loans as well as the wrongful mentioning of the due loan amount have patently abused the process of the Court and hence the instant petition ought to be dismissed barely on these grounds without entertaining the merits of this case. 16. Heard Sri. 16. Heard Sri. Udaya Holla, learned Senior counsel appearing for Sri.M.Muniraja, learned counsel for the petitioners. Sri.Yogesh D.Naik, learned AGA appearing for respondents No.1 and 2, Sri.Abhishek.N.V., and Smt.Gowhar Unnisa learned counsel appearing for respondent/caveator No.3 and Sri.N.S.Srihari., learned counsel appearing for respondent No.4. Perused papers. 17. The points that would arise for determination are: i. Whether the respondent -Bank has followed the due procedure in respect of service of notice on the borrowers when - 74 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 the proceedings was pending before the Deputy Registrar of Cooperative Societies? ii. Whether service on a minor member of the family of the petitioners could be held to be valid service for the DRCS to have proceeded with the matter? iii. Whether the respondent–Bank has followed the due procedure before bringing the property for auction insofar as the valuation of the property is concerned? iv. Whether the delay of 2 years 3 months and 11 days in filing the appeal before the Karnataka Appellate Tribunal could have been condoned? v. Whether the order of the Appellate Tribunal suffers from any infirmity requiring this Court to intercede? vi. Whether even if the contentions of the petitioners are accepted, could a restitution be granted to the petitioners setting aside sale deed executed by the Bank in favour of the auction purchaser? vii. What order? - 75 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 18. I answer the above points as under: 19. ANSWER TO POINT NO.(i): Whether the respondent -bank has followed the due procedure in respect of service of notice on the borrowers when the proceedings was pending before the Deputy Registrar of Cooperative Societies? And Answer to Point No.(ii): Whether service on a minor member of the family of the petitioners could be held to be valid service for the Deputy Registrar of Cooperative Societies to have proceeded with the matter? 19.1. Both the above points having a bearing on each other are taken up together for consideration. 19.2. The submission of Sri. Udaya Holla, learned Senior Counsel is that the respondent - Bank has not followed the due procedure before bringing the property for auction and in this regard, he relies on two main aspects, firstly, as regards service not being effected of the notice of the proceedings before the Deputy Registrar of Cooperative Societies and - 76 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 secondly, as regards the valuation made of the property not being proper before the property was bought for sale. 19.3. As regards the service of notice, he relies upon Clause (c) of Sub-Rule (2) of Rule 17 of the Karnataka Souharda Sahakari Niyama, 2004 to contend that notice has to be served on the borrower or a male member of the borrower’s family who is major in age. 19.4. He submits that admittedly notice has been served on one Kushal, who is the son of the petitioners who was minor in age at that time. The service not being effected on the borrowers, that is the petitioners and having been effected on a minor, the service is not proper and sufficient, and/or in compliance with Clause (c) of Sub-Rule (2) of Rule 17. 19.5. As such, service not being effected properly, the proceedings could not have gone on, the - 77 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 petitioners could not have been placed ex parte. This aspect has not been considered in the right perspective by the Karnataka Appellate Tribunal. Therefore, the reasoning of the Appellate Tribunal that service has been effected properly and thereafter there is a delay in filing an appeal is unsustainable. This submission is sought to be supported by placing reliance on the aforesaid provision. Clause (c) of Sub-Rule (2) of Rule 17 has been reproduced hereinabove. 19.6. The same would categorically indicate that a notice has to be served on the borrower, or a male member of the borrower’s family who is major in age. Though the aspect of service on a male member of the family is redundant in today’s time and age, the fact remains that the service is required to be effected on the borrower or a member of the borrower's family who is major in age, if the word male is - 78 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 eschewed. Be that as it may, the person on whom the service was effected, Kushal, is a male member of the family. However, he is not major in age. 19.7. Thus, the service of notice on him is clearly in violation of the mandate of Clause (c) of Sub- Rule (2) of Rule 17 and as such, the service cannot be held to be properly effected on the borrowers by causing a service of the notice on a minor member of the family. 19.8. This aspect was not properly considered by the Deputy Registrar. The Deputy Registrar was required to ascertain as to who had been served, if that person was a member of the family of the borrower if not served on the borrower and if that service has been effected on a person who is major in age. The award passed by the Deputy Registrar only indicates that service having been effected, the - 79 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 borrowers having not appeared, they were placed ex parte and the matter proceeded with. 19.9. Thus, this valuable right vested in the borrower has been diluted by the Deputy Registrar by not ensuring compliance with Clause (c) of Sub- Rule (2) of Rule 17. 19.10. Thus, I answer Point No.(i) by holding that service of notice in a proceeding before the Deputy Registrar of Co-operative Societies in pursuance of a dispute raised, more so as regards a claim for money would have to be effected in terms of Clause (c) of Sub-Rule (2) of Rule 17 and any violation thereof cannot be said to be valid service. 19.11. I answer point no (ii) by holding that service on a minor member of the family of the petitioners cannot be held to be valid service for the Deputy Registrar of Cooperative Societies to have proceeded with the matter placing the petitioners exparte. - 80 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 20. ANSWER TO POINT NO. (iii): Whether the respondent – bank has followed the due procedure before bringing the property for auction insofar as the valuation of the property is concerned? 20.1. The submission of Sri Udaya Holla, learned Senior Counsel is that the Bank has acted in a manner contrary to the applicable law. The respondent - Bank has not carried out proper valuation of the property before bringing the same for auction. The property having been grossly undervalued, the rights of the petitioners have been adversely affected. According to him, the value of the property is about 4 crores, the loan amount being Rs.30 lakhs, the respondent Bank has sold the property worth 4 crores for a meagre sum of Rs.1.22 crores. 20.2. The petitioners having been always willing to make payment of the loan amount along with the applicable interest, they having been denied - 81 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 the opportunity to make such payment on account of non-service of notices, the respondent - Bank has acted in an improper manner by not properly valuing the property and going ahead with the sale. 20.3. Learned counsels for the Bank have contended that despite service of notice, the petitioners did not appear before the Deputy Registrar of Cooperative Societies, an award having been passed, the property was got valued by a valuer who has valued the property and submitted a report on 25.08.2023 in terms whereof the total market value of the property including land and building has been certified as Rs.1,52,42,562/- and the distress value has been fixed at 80% of the market value at Rs.1,21,94,050/-. The property having been sold for Rs.1.22 crores, which is just above the distress value fixed by the valuer, it is submitted that the valuation report having been - 82 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 secured, the sale having occurred at a higher value than the valuation report, no fault can be found therewith. 20.4. As regards the contention of the petitioner that the value of the property is 4 crores, it is contended that on two earlier occasions when the property was brought for sale by fixing the reserve price at Rs.1,20,00,000/-, there were no bidders and it is only on the third occasion that respondent No.5 has bid for the property and the sale has been confirmed. If at all the value of the property was Rs.4 crores, their submission is that there would have been many more people who would have bid at the auction and been successful in the said auction for a price obviously above 1.20 crores, but at price less than Rs.4 crores. There being no interest shown for bidding for the property on two earlier occasions, it cannot now be contended by the petitioners that the valuation is Rs.4 - 83 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 crores, much after the sale has occurred. Thus, the submission made is that the actions taken by the Bank are proper and correct and no fault can be found therewith. 20.5. Sri.Udaya Holla, learned Senior Counsel has relied upon the decision in Binayak Swain's case to contend that the sale having occurred exparte, equities of the borrower would have to be considered and the sale be set-aside so as to balance the equity of the borrower. 20.6. That decision, in my considered opinion, would have to be considered holistically and not only as regards the sale. Insofar as the decision relied upon by Shri Udaya Holla learned Senior Counsel in Desh Bandhu Gupta's case, to contend that before an auction sale is proposed, the estimate or the valuation of the property is to be given to the judgment debtor as also decree holder in respect of the value of the property and their input to be collected - 84 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 before fixing the reserve price for the property. This he submits has not been done, inasmuch as the respondent-Bank has not called upon the petitioner judgment debtor to indicate the value of the property and has not taken the same into consideration. According to him, the valuation of the property is more than Rs.4 crore which ought to have been taken into consideration. 20.7. The decision in Desh Bandhu Gupta's case was one which had been rendered in respect of an auction sale conducted in an execution proceedings by applying Rule 66 of Order 21 of the Code of Civil Procedure. A perusal of the said judgment would indicate that on the court authorizing its officers to conduct the sale under Rule 68, the sale should be conducted at the time and place specified or modified with the consent of the judgment debtor. The proclamation should include the estimate, if any given by either the Judgment Debtor or Decree - 85 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 Holder or both the parties. Unless a notice under Sub Rule (2) of Rule 66 of Order 21 were waived by the Judgment Debtor, the Judgment Debtor was required to be given an opportunity to give the estimate of the property which is a material fact to enable the purchaser to know the value. 20.8. The Hon’ble Apex Court has held that the absence of notices to the Judgment Debtor causes irremediable injury to the Judgment Debtor and in the absence of notice to the Judgment Debtor, the same disables him to offer his estimate of the value of the property. The Hon’ble Apex Court has further gone on to hold that it is very salutary that a person's property cannot be sold without being told that it is being so sold and given an opportunity to offer his estimate as he is the person who intimately knew the value of his property prevailing in the locality and has gone on to - 86 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 hold that in terms of Sub-Rule (1-A) of Rule 54 of Order 21, preemptory language having been used before settling the terms of the proclamation, the Judgment Debtor has to be served with the notice, the omission thereof renders the further action and sale in pursuance thereof, unless the judgment debtor appears without notice and thereby waives the service of notice. In this case, Sri.Udaya Holla, learned Senior counsel submits that no notice had been issued, the petitioners have not waived the notice, the input of the Judgment debtors not having been considered and the valuation fixed by the Bank unilaterally would not enure to the benefit of the Bank, the same being violatory of the rights of the Judgment Debtor, this Court ought to intercede. 20.9. The decision in Desh Bandhu Gupta's case was rendered in the year 1994. Thereafter, there have been several decisions which have - 87 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 been rendered. On first blush, the decision in Desh Bandhu Gupta’s case, if applied to the present fact situation, the action taken by the Bank is in violation of the dicta laid down by the Hon’ble Apex Court in the above decision. In pursuance of the said decision, further reliance has been placed by Sri Udaya Holla on Mahakal Automobile's case and Shalimar Cinema's case, to contend that if the sale is conducted for inadequate sale consideration, the Court would be dutybound to set aside the sale. Reference has also been made to the decision in Ram Kishun's case to contend that the valuation and reserve price are of paramount importance. In case, proper valuation has not been made and the reserve price is fixed taking into consideration inaccurate valuation report, the intending buyers may not come forward treating the property as not worth the purchase by them - 88 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 and as such, it is contended that there must be application of mind by the Authority concerned while approving and accepting the report of the approved Valuer while fixing the reserve price, failure to do so would cause substantial injury to the borrower/guarantor and would amount to material irregularity and ultimately vitiate the subsequent proceedings. 20.10. By relying on Vincent Paul's case, it is contended that though a valuation report could be obtained from the valuer, consultation with the secured creditor and the borrower is necessary. If the Judgment debtor were not given reasonable opportunity as regards the valuation, the sale would suffer from material irregularity. The decision of the Hon’ble Apex Court in Nani Gopal Paul's case has been pressed into service to contend that the court cannot remain a mute or helpless spectator to obvious and manifest illegality committed in - 89 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 conducting the sale, valuation being one of the paramount importance, there being an absolute violation of the said principles of valuation, this court is required to intercede. 20.11. For similar purposes, reliance is placed on Devdas Kumar's case and Satyanarain Bajoria's case. 20.12. On all the basis of the above, it is contended that the valuation not having been done properly, the petitioner borrower not being consulted, the auction sale is improperly conducted and is required to be set aside. 20.13. The Counsels for the Bank, on the contrary, have contended that Form No. 7 was issued on 25.08.2021 and served on the second petitioner on 1.09.2021. The said Form No. 7 indicated the valuation of the property and it is on that basis that the first auction notice was issued on 30.12.2022 to the petitioners who refused to accept the same, the second auction notice in - 90 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 terms of Form Nos.8 and 9 dated 6.07.2023 was issued on 30.12.2022 to the petitioners who refused to accept the same, the third auction notice in Form 8 and 9 dated 25.09.2023 was served on 3.10.2023. The three notices having been served, the petitioners being fully knowledgeable about the proposed auction and the valuation, it was for the petitioners to have come forward and provided their valuation and/or their objection to the reserve price fixed. The knowledge of the award and the proposed auction being available with the petitioners as far back as on 1.09.2021, the petitioners did not take any action thereon. They have approached the Court only after the sale has been completed falsely contending that they came to know about it only subsequently. 20.14. They reiterate that the valuation report has been obtained from a registered Valuer. The - 91 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 property having been brought for sale on three earlier occasions at a reserve price of 1,20,00,000/- there were no bidders and it's only on the third occasion that the respondent No.5, auction purchaser, has come forward to purchase the same. Thus, they submit that necessary notices as required in terms of the decisions relied upon by Sri Udaya Holla, learned Senior Counsel have been given to the petitioners, the petitioners themselves having chosen not to come forward and provide their input as regard to valuation cannot now contend otherwise that the valuation is improper and/or that the property had been brought for sale for a lesser amount and as such, the same is not sustainable. The action on the part of the petitioner is only to delay the sale and to cause loss, harm and injury to the auction purchaser. - 92 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 20.15. Sri.N.S.Srihari, the counsel for the auction purchaser, submits that the auction purchaser who has come forward to make payment of the monies and has indeed deposited the said monies is required to be protected. The dispute at the most could be inter-se between the Bank and the borrower as regards the compliance or not with the applicable requirements. Once an interest has been created in favour of the purchaser, such interest being required to be protected, cannot be negated on the basis of the ipse dixit of the borrower. 20.16. Reliance is placed on the decision in Padanathil Ruqmini Amma's case to contend that a purchaser of a property bona fide cannot be disturbed on the basis of any particular dispute raised by the borrower. Apart from this argument, there are several other arguments advanced by Sri.Srihari which would be considered on a later point of time. - 93 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 20.17. Insofar as the present point is concerned, what would be required to be seen is whether the Bank has violated the rights of the Judgment Debtor in not providing an opportunity to the Judgment Debtor to submit their say as regards the valuation, thereby rendering the auction invalid. 20.18. There cannot be any dispute as regards the contention of Sri Udaya Holla, learned Senior Counsel that the Judgment Debtor would have to be given an opportunity of submitting his, her or their say as regards the valuation made by the Bank and the valuation at which the bank proposes to sell the property. The question here is, whether the bank has issued a notice to the Judgment Debtor providing an opportunity to the Judgment debtors/petitioners to have their say as regards the valuation? - 94 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 20.19. As submitted by the counsels for the Bank, Form No.7 was issued on 25.08.2021 and served on the second petitioner on 1.09.2021 and the first auction notice dated 30.12.2022 sought to be served on the petitioner was refused to be accepted by the petitioners. The second auction notice dated 6.07.2023 was served on 15.07.2023 and the third auction notice dated 25.09.2023 was served on 3.10.2023. These auction notices having been served, a perusal of the auction notices are clearly and categorically indicate the valuation at which the property is proposed to be auctioned. If at all the petitioners had any grievance as regards the valuation and had their own valuation to submit, it was for the petitioners to have submitted the same on receipt of the auction notices. The petitioners not having submitted their say and/or their valuation or disputed the valuation of the bank, - 95 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 the petitioners cannot now be heard to say that their rights in submitting their say as regards the valuation has been violated, rendering the auction invalid. 20.20. A person who is in the wrong cannot claim advantage of the said wrong. A person who has not complied with the law and/or the rules applicable thereto and who is in the wrong side would have to face the consequences of such action. Merely because the consequences are harsh and/or that the consequences would result in the sale of the person's property is no ground for this court to intercede on equity. This court is required to apply the law as is, more so in terms of commercial matters where Banks are involved and Banks are required to recover the amounts due. The petitioners though having been served notices on multiple occasions have chosen to take a bystanders’ perspective, have kept quiet, not complied with - 96 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 their obligations, and thereafter have come forward making allegations against the Bank, which cannot be countenanced either in law or fact. 20.21. As aforesaid, the petitioners being in the wrong would have to take the consequences of their wrongs, even if the said consequences are harsh. The valuation having been communicated to the petitioner, the property having been brought for sale at the said valuation being fixed as a reserve price on two earlier occasions, no one having come forward to purchase the property at that price and its only in the third auction that respondent No.5 has come forward, I am of the considered opinion that the Bank has acted in a proper manner. The opportunity which was required to be extended by the Bank has been so extended, it is the petitioners who have not availed of the opportunity. Non-availing of the - 97 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 opportunity cannot result in the petitioners contending that the petitioners have been denied the opportunity. It was always available for the petitioners to avail the opportunity granted by the Bank. Not having done so, the petitioners cannot cry foul. The petitioner knowing fully well that they could have paid the due amounts before the auction was completed, did not do so, which resulted in the auction taking place, if at all the petitioner claim that the property was valued at 4 crores, the petitioners could have brough a person who could have purchased the property at that price on the three accossions that the auction was conducted, thus the say of the petitioners has only remained a claim and there is no substance in it. 20.22. In that view of the matter, I answer point No. (iii) by holding that the respondent-Bank has followed the due procedure before bringing the - 98 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 property for auction. The petitioners have been provided an opportunity to have their say on the valuation of the property. The petitioners being in default cannot contend otherwise and as such, the valuation of the property made is proper and correct. 21. ANSWER TO POINT NO. (iv): Whether the delay of 2 years 3 months and 11 days in filing the appeal before the Karnataka Appellate Tribunal could have been condoned? 21.1. The contention of Sri.Udaya Holla, learned Senior Counsel for the petitioners is that there is no delay of two years, three months and eleven days in filing the appeal before the Karnataka Appellate Tribunal. The petitioners have filed the appeal as soon as they came to know about the auction which has been conducted. The petitioners have been placed exparte before the DRCS, had not participated in those proceedings and as such, the date on which the award was passed cannot be taken - 99 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 into consideration for the purpose of calculation of the period of limitation or the delay in filing the appeal. 21.2. The submission of the counsels for the Bank is that the Form No.7 having been served on the petitioners on 1.09.2021, they were aware of the award which had been passed as on that date. Thereafter, they chose not to take any action until the auction was completed. The details of the award having been incorporated in Form No.7 served on 1.09.2021 they being aware of the award, the date of knowledge would have to be taken into consideration as on 1.09.2021 and therefore, the appeal filed was barred by the law of limitation, the petitioners waited and watched as a bystander during the time auctions were conducted, the petitioners cannot contend that they did not have any knowledge of the award or the proceedings - 100 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 taken thereafter. It is these two contentions of both the sides which are required to be considered by this court. 21.3. There is no dispute that the petitioners were placed exparte before the DRCS and the DRCS passed an exparte award. An award passed by the DRCS is required to be challenged within a period of 30 days from the date of the order 2.08.2024. 21.4. The contention of the petitioners as aforesaid is that they came to know about the award only when they came to know about the auction. This contention cannot be accepted inasmuch as, Form No.7 was issued by the respondent bank on 25.08.2021 which was served on the second petitioner on 1.09.2021, the first auction notice also came to be subsequently issued on 30.12.2022 which was refused to be received by the petitioners, the second auction - 101 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 came to be issued and served on 6.07.2023 and third auction notice came to be issued and served on 25.09.2023. 21.5. Thus, not only when the Form No.7 was served on the petitioner No.2 on 1.09.2021 and the first auction notice was refused service of by the petitioners on 30.12.2022, the petitioners did not take any action to challenge the award passed by the DRCS which had by then come to their knowledge. 21.6. The first cause of action, for the petitioners arose when Form No.7 was served on 1.09.2021. Even if it were to be accepted, that the petitioners had been wrongfully placed exparte and the matter proceeded with, the petitioners having come to know of the said award on 1.09.2021, were required to challenge the said award within the time prescribed thereafter and/or within a - 102 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 reasonable time seeking for condonation of delay on account of the petitioners not being able to file the appeal due to reasons beyond their control which could have been considered by the Karnataka Appellate Tribunal. 21.7. The petitioners instead of doing so even after having come to know of the award on 1.09.2021, they stayed quiet when the first auction failed, they also stayed quiet when the second auction failed, probably they were expecting the third auction to also fail and continue to be in possession of the property. 21.8. Expectations of a party cannot decide the legal rights of the party. A person may have expectations and may hedge on the risk by hoping that the auction would not succeed. However, in the present case, unfortunately when the third auction has taken place successfully and respondent No.5 has - 103 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 successfully bid for the property and made payment of the due amounts, the petitioners cannot now come forward crying foul contending that they came to know about the auction only after the auction was completed. The conduct of the petitioners clearly indicates otherwise. 21.9. The notice in Form No.7 had been served on 1- 9-2021 on the petitioner No.2, the petitioners, who are husband and wife, have continued to take advantage of the delay in the auction proceedings and now have come forward to deprive the auction purchaser of his rights, which, in my considered opinion, cannot be so done. 22. Answer to point No. (v).: Whether the order of the Appellate Tribunal suffers from any infirmity requiring this Court to intercede? 22.1. The contention of Sri. Udaya Holla, learned Senior Counsel in this regard is that the Court - 104 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 has to consider the matter equitably the property being subject matter of the security and auction, being a residential property, which has been rented out to several persons and the petitioners also being residents of one of the portions, if the auction were to be confirmed, the petitioners and the other persons would be evicted from the property causing untold harm and injury to them. 22.2. His submission is also that the valuation has not been done properly and this Court ought to set aside the auction and permit the petitioner to now make payment of the due amounts which the petitioners are willing to pay. This aspect of the petitioners willing to make payment of the due amounts could be permitted to be considered by the respondent – Bank. By enquiring with the respondent - Bank if the Bank was willing to receive the monies now from the petitioners and close the matter, - 105 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 the respondent – Bank contented otherwise and stated that now that the auction has been completed, the respondent-Bank does not wish to enter into any compromise with the petitioners. This aspect was further compounded by the auction purchaser. The auction purchaser now contending that a right having been created in favor of the auction purchaser, the auction purchaser having acted in a bonafide manner, his rights cannot be negated. 22.3. These contentions being required to be considered in terms of the applicable law, the transaction being commercial in nature, I am afraid, I am unable to accept the submission and the request of Sri.Udaya Holla, learned Senior Counsel that the matter has to be looked into equitably and that this Court is required to set aside the auction so that the use of the property for residential purpose by the - 106 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 petitioner and certain others are not adversely affected, the transaction being commercial in nature, the petitioners having borrowed money from a Bank were always aware that they had to repay the amounts within the timeframe, they having not repaid the monies, proceedings having been initiated before the DRCS, though the service of notice was effected on their minor son, which is not in accordance with Clause (c) of Sub-Rule (2) of Rule 17, the fact remains that the minor son had knowledge of the said notice and it cannot be expected that the minor son did not bring it to the notice of the petitioners, the minor son being 17 years of age as on the date of service of notice. Even if it were to be accepted that the minor son did not bring the said service of notice to the knowledge of the petitioners, i.e., his parents, subsequently as indicated in answer to point No.(iii), Form No.7 was served on the second - 107 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 petitioner, the first auction notice was refused to be accepted by the petitioners, the second and third auction notices were served on the petitioners, which would indicate that the petitioners had complete knowledge and were waiting on the sidelines as bystanders to see what happens. 22.4. This aspect has been properly considered by the Karnataka Appellate Tribunal and the delay not being capable of condoned by adverting to the facts of the matter has dismissed the appeal. I do not find any infirmity in the said order of the Appellate Tribunal taking into consideration the arguments which have been advanced in this matter dehors the aspect of limitation. 22.5. All the facts indicate that the petitioners wanted to take advantage of the delay and have only come forward after the auction has been - 108 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 confirmed in favour of the auction purchaser who has paid all the amounts. 22.6. Thus, I answer point No. (v) by holding that the order of the Appellate Tribunal does not suffer from any legal infirmity requiring this court to intercede. 23. ANSWER TO POINT NO. (v): Whether even if the contentions of the petitioners are accepted, could a restitution be granted to the petitioners setting aside sale deed executed by the Bank in favour of the auction purchaser? 23.1. The contentions of the petitioners have not been accepted. Hence, exfacie, this point need not be answered. However, since several arguments have been advanced on this aspect, this court would be dutybound to consider the arguments addressed by the learned counsel for the petitioner and learned counsel for the auction purchaser. 23.2. The submission of Sri.Udaya Holla, learned Senior Counsel by relying on Binayak Swain's case supra is that when an auction is set aside, - 109 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 restitution would normally follow and if this court were to set aside the auction of the Bank in respect of the properties of the petitioner, this court would have to direct the restitution of the property. 23.3. The submission of Sri.Srihari, the counsel for the auction purchaser, is that the auction purchaser is a bonafide purchaser for value having participated in a public auction, and as such, his interests are required to be protected. Reliance has been placed on Padanathil Ruqmini Amma's case to contend that the Hon’ble Apex Court has held that property sold to a bona fide purchaser in an auction sale, in furtherance of execution of decree, is protected and the purchaser cannot be asked to restitute the property, even if the decree was later-on held to be invalid, so long as the decree was valid at the time of the auction sale. - 110 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 23.4. In the present case, his submission is that even if this court were to come to a conclusion that the award passed by the DRCS is required to be set aside, even then, equity having been created in favor of the auction purchaser, who has acted in furtherance of the said award which has not been challenged within time, the auction purchaser who has invested his hard- earned money cannot be deprived of the said property. 23.5. Reliance in this regard is also placed on Janak Raj's case to contend that when the auction purchaser is a stranger, his interests are required to be protected. It is only in the case of the decree holder being the auction purchaser in the execution proceedings, the decree holder knowing fully well that there is a possibility of the decree being set aside and having taken the risk of purchase of the property in execution proceedings, would be - 111 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 bound by any order setting aside the decree. Insofar as the third party is concerned, he not being in control of the proceedings and not being a party to the proceedings, if a decree were to be set aside, such third party purchaser cannot be deprived of the purchase. 23.6. Reliance is also placed on Jantha Textile's case, to contend similarly that a purchaser who is bona fide, cannot be deprived of the benefits of the auction. 23.7. Lastly, a submission is made by Sri.Srihari that the aspect of restitution being equitable one, the petitioners have not acted in an equitable manner they have, in fact, acted in a dishonest manner, played fraud on the Court by not participating in the proceedings. They not having discharged their obligations in a proper manner cannot seek for equity when they have acted in a manner contrary to the applicable law. - 112 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 23.8. The facts indicated above and the arguments indicated above and been considered, it is clear that respondent No.5, auction purchaser is a third party to the transaction. Respondent No.5 is neither the decree holder nor a person claiming under the decree holder. Respondent No.5 had answered the auction notification issued by the Bank, had participated in the auction and was declared a successful bidder. Pursuant thereto, the auction purchaser has made payment of the due amounts which have been received by the Bank, sale having been confirmed. Thus, insofar as the auction purchaser is concerned, the auction purchaser has acted in the terms and in the manner that the auction purchaser was required to act. The auction purchaser has therefore discharged all his obligations and therefore, in my considered opinion, as rightly contended by Sri.Srihari, has acted in a bona fide manner. It is the - 113 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 petitioners who, as indicated above, have acted in a malafide manner and have come forward only after the auction sale has been completed. 23.9. By relying on Binayak Swain's case, the submission made was that if a decree were to be set aside, restitution can be ordered. 23.10. This aspect has been considered in detail in Janak Raj's case and Janata Textile's case. There is a distinction which has been drawn between a stranger to the proceedings who is considered to be bona fide and a party to the proceedings. In Binayak Swain's case, the purchaser in the auction was the decree holder and it is in those circumstances that once a decree was set aside, restitution was ordered, though much subsequently. 23.11. The Hon’ble Apex Court in Janak Raj's case and Janata Textile's case has drawn a distinction between a stranger auction purchaser and a decree holder purchaser and - 114 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 has held that a stranger auction purchaser is required to be protected, if he has acted bona fide he not being part of the proceedings between the decree holder and the judgment debtor. 23.12. In the present proceedings, there is no allegation made as regards the conduct of the auction purchaser, though there have been allegations made as regards the valuation of the property made by the bank. Those aspects have also been adverted to hereinabove and negated. Thus, when there is no allegation made against the third-party auction purchaser as regards his conduct, his participation and his being successful in the auction proceedings as held by the Hon’ble Apex Court in Janakaraj's case and Janata Textile's case, the auction purchaser being a third-party or a stranger acting in a bona fide manner, his interest would have to be protected and even if all the other contention of the - 115 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 Judgment Debtor that the award is not passed properly and or the valuation has not been made properly or accepted, a stranger auction purchaser having acted bona fide cannot be put at a disadvantage and restitution ordered. 23.13. As such, I answer point No.(vi) by holding that even if the contentions of the petitioner were accepted and the award passed is set aside, the auction conducted in pursuance of an award, the purchaser being a stranger to the transaction who has acted in a bona fide manner against whom there are no allegations of malafide, the sale deed in favour of the auction purchaser cannot be set aside and restitution ordered in favour of the Judgment Debtor. In the present case, the contentions of the petitioners not having been accepted, the question of consideration of the argument of restitution also would not arise. 24. ANSWER TO POINT NO. (vi): What Order? - 116 - NC: 2025:KHC:10768 WP No. 26112 of 2024 C/W WP No. 22999 of 2024 In view of my answers above, no grounds being made out, both the petitions stand dismissed. The respondents are at liberty to take such action as is permissible under law against the petitioners. SD/- (SURAJ GOVINDARAJ) JUDGE LN List No.: 2 Sl No.: 1