P. M. ABUBAKARversusSTATE OF KARNATAKA AND ORS.

                       [2016) 11 S.C.R. I 03


                       P. M. ABUBAKAR                                 A
                                 v.
                STATE OF KARNATAKA AND ORS.
              (Civil Appeal Nos.10894-10895 of2016)
                      NOVEMBER 17, 2016                               8
       (ANIL R. DAVE AND A. M. KHANWILKAR, JJ.)
     Auction:
       Karnataka Cooperative Societies Act, 1959 - ss.89A, 106 -
Auction sale of mortgage property - Debtor committed default in c
repayment of loan to Bank, recovery proceedings were initiated by
the Bank - Award passed for the recovery of money - Debtor failed
to pay the awarded amount in spite of repeated opportunities -
Mortgaged property auctioned - Appellant was the highest
bidder - Competent authority confirmed auciion sale in favour of
                                                                        D
appellant - Sale certificate issued to appellant - Debtor preferred
appeal before the Deputy Registrar (CS) uls. 106 - Deputy Registrar
(CS) held that sale was in accordance with Rules hut it was a case
of under valuation of the property and on that ground set aside the
confirmation of sale 011 the condition that the debtor shall deposit
stipulated amount with interest - Debtor again failed to comply with E
the order - Appellant-auction purchaser filed writ petition against
the order of Deputy Registrar (CS), which was dismissed by High
Court - On appeal, held: Order of confirmation of sale is ascribable
to s.89A of the Act rlw. r.38 of the Rules ,... No remedy of appeal
against that decision is provided - s.106 of the Act does not provide
                                                                        F
for an appeal against the order confirming an auction sale, passed
uls.89A r/w. r.38 - s.89A of the Act rlw. r.38 of the Rules provide for
special dispensation - Order passed by the Deputy Registrar (CS)
in appeal was without jurisdiction - Therefore, High Court committed
error in dismissing the writ petition filed by appellant-auction
 purchaser - Order passed by Deputy Registrar (CS) setting aside G
 auction sale in favour of appellant-auction purchaser and order of
 High Court confirming it, accordingly set aside - Karnataka
 Cooperative Societies Rules - r. 38.
     Allowing the appeals by the auction purchaser and
dismissing the appeals by the debtor, the Court held                   H
                              103
104           SUPREME COURT REPORTS                     [2016] II S.C.R.


A           HELD: 1. The debtor did not prefer application for setting
      aside the sale, inconformity with the remedy provided in that
      behalf in terms of Section 89A of the Karnataka Cooperative
      Societies Act, 1959 read with Rule 38 of the Karuataka
      Cooperative Societies Rules. That remedy could be availed by
      the debtor only after depositing the awarded amount together
B
      with interest thereon with the Recovery Officer, in terms of Rule
      38(4)(a) of the Rules. The application as filed by the debtor was
      dismissed by the ARCS. Resultantly, the Competent Authority
      proceeded to confirm the auction sale, followed by grant of a
      certificate of sale and execution of a Sale Deed in the prescribed
c     I;orm. The sale of the subject property thus, became final. [Para
      23] 1120-C-E)
            2. The debtor, however, was ill advised to prefer an appeal
      before the Deputy Registrar (CS) of Cooperative Societies,
      against the decision of the Competent Authority confirming the
D     auction sale. For, remedy of appeal before that Authority
      could be availed only in terms of Section 106 of the Act, against
      an order passed by the Authority (Registrar) in exercise of
      powers ascribable to the provisions referred to therein. The
      order of confirmation of sale is ascribable to Section 89A of
      Karnataka Cooperative Societies Act, 1959 Act read with Rule
 E    38 of Karnataka Cooperative Societies Rules. No remedy of
      appeal against that decision is provided. Section 106 of the Act
      does not provide for an appeal against the order confirming an
      auction sale, passed under Section 89A read with Rule 38.
      Section 89A of the Act read with Rule 38 of the Rules provide for
 F    a special dispensation. Thus understood, the order passed by
      the Deputy Registrar (CS) on the appeal preferred by the debtor,
      is without jurisdiction. [Para 24) [120-E-H]
            3. The debtor unsuccessfully challenged the auction sale
      and prayed for setting aside the same by filing writ petitions. That
 G    relief has been rejected. A formal application for setting aside
      the sale filed by the debtor was also rejected by the ARCS. The
      appeal preferred by the debtor before the Deputy Registrar (CS)
      was against the decision of the Competent Authority confirming
      the auction sale. It was not maintainable under Section 106 of the
      Act. The Deputy Registrar (CS) had no jurisdiction. Further, once
 H
   P. M. ABUBAKAR v. STATE OF KARNATAKA AND ORS.                         105


the auction sale is confii-med by the Competent Authority, it is          A
not open to the Authority to exercise power under Rule 38(6), to
set aside the sale. That would be against the spirit of legislative
intent of giving finality to the auction sale process upon passing
of an order of confirmation of sale. It is only the Authority referred
to in Rule 38, who could have set aside the sale by recording
                                                                          B
reasons in writing in exercise of powers under Rule 38 of the
Rules, albeit before passing an order confirming the auction sale.
[Paras 29, 30, 31] [122-B-E]
      4. In the present case, the debtor did not choose to file an
application for setting aside the sale in terms of Rule 38(4) of the
Rules at all. Instead, he preferred an appeal under Section 106 of
                                                                          c
the Act after the order of confirmation of sale was passed by ARCS
in favour of the auction purchaser. Such appeal under Section
106 of the Act was not maintainable. The decision of confirmation
of sale is not ascribable to any of the provisions expressly referred
to in Section 106 of the Act, in respect of which remedy of appeal        D
is provided. Further, the order passed by the Deputy Registrar
in favour of the debtor to set aside the auction sale on conditiOns
specified therein, is not ascribable even to an order passed under
Rule 38(6). That discretion has to be exercised only by the
Recovery Officer and more importantly before the order of
confirmation of auction sale. [Para 34) [126-C-E]                         E

      5~ The High Court committed manifest error in dismissing
the Writ Petitions filed by the appellant - auction purchaser
challenging the decision of the Deputy Registrar (CS). The High
Court ought to have allowed the Writ Petition as the Deputy
Registrar had no jurisdiction to entertain appeal against the order        F
of confirmation of sale issued under Section 89A read with Rule
38 of the Rules; and also because, admittedly, the debtor failed
to pay the awarded amount in spite of repeated opportunities
given to him from time to time. Moreover, the debtor cannot
succeed in the Writ Petition filed by the auction purchaser and           G
the Bank against the decision of the Deputy Registrar and get
higher or further relief in such proceedings. Thus, the Division
Bench having finally disposed of the writ appeal ought not to have
entertained the application preferred by the debtor in the guise
of clarification and to pass any order thereon - which would enure
                                                                          H
106            SUPREME COURT REPORTS                     [2016] 11 S.C.R.


A     to the benefit of debtor who is in default, having become functus
      officio. [Para 36) [127-C-F]
             Annapurna v. Mallikarjun & Anr. (2014) 6 SCC 397 :
             2014 (7) seR 299- referred to.
             J.Rajiv Subramaniyan & Anr. v. Pandiyas & Ors.
B            (2014) 5 sec 651: 2014 (3) SeR II40; Vasu P. Shetty
             v. Hotel Vandana Palace & Ors. (2014) 5 sec 660 :
             2014 (9) seR 38 - held inapplicable
                             Case Law Reference
c     2014 (7) SCR 299               referred to             Para34
      2014 (3) SeR 1140              held inapplicable       Para JS
      2014 (9) SCR 38                held inapplicable       Para 35
         CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 10894-
      10895 of2016.
D
             From the Judgment and Order dated 08.06.2012 and 29.06.2012
      of the High Court ofKarnataka, at Bangalore in Writ Appeal No. 1006/
      2010 C/W Writ Appeal No. 2433 of2010(CS)
                                     WITH
E           C. A. NOS. I 0896- 10897 of 2016 and
            C. A. NOS. 10898-10899 of 2016.
            R. S. Hegde, Ms. Farhat Jahan Rehmani, Shanti Prakash (For
      Rajeev Singh), Advs., for the Appellant.
 F          Haren Raval, Sr. Adv., Nataraj Balla!, Rajesh Mahale, Krutin R.
      Joshi, Girish Ananthamurthy (For Mrs. Vaijayanthi Girish),
      V. N. Raghupathy, Ms. Shomila Bakshi, Advs. for the Respondents.
            The Judgment of the Court.was delivered by
            A. M. KHANWILKAR, J. 1. Delay condoned.
G
            2. Leave granted.
           3. These cross appeals have been filed by the debtor (Keshva
      N. Kotian) and auction-purchaser (P.M. Abubakar). As the debtor
      committed default in repayment ofloan to the Bank (Mahalakshmi Co-
 H
   P. M. ABUBAKAR v. STATE OF KARNATAKA AND ORS.                              107
               [A. M. KHANWILKAR, J.]

operative Bank Limited), recovery proceedings were initiated by the            A
Bank. That culminated with an award passed by the Joint Registrar Co-
operative Societies, Mysore dated 02.01.2004 against the debtor for
recovery of Rs. 13, 65,899.70 with interest at 19% p.a. As the debtor
failed to pay the amount in terms of the award, execution petition was
filed. The debtor, however, filed an appeal being Appeal No. 419 of
                                                                               B
2004 before the Karnataka Appellate Tribunal, Bangalore. On
21.06.2004, the Tribunal passed a conditional order of stay requiring the
debtor to deposit 40% of the awarded amount within eight weeks, failing
which the stay would stand vacated. The debtor failed to deposit that
amount. Therefore, the bank after obtaining valuation report relating to
the mortgage property, issued notice on 2.2.2005 in Form No. 6. In spite       c
of notice, no payment was made by the debtor. As a result, the Bank
issued notice of attachment in Form No. 7 on 25.02.2005. The notice of
attachment was followed by a notice ofauction issued on 3.3.2005, fixing
the auction date as 11.04.2005. On 7.3.2005, the debtor's brother (Shri
Anand Kotian) filed an objection to the said proceedings. According to
                                                                               D
him, the property was a joint family property. This objection was enquired
into and rejected on 22.3.2005.
       4. The debtor submitted letters dated 6.4.2005 and 8.4.2005
requesting to stay the auction in view of the financial difficulties faced
by him and paid only Rs. 25,000/- in the execution case filed against him.
The auction sale was postponed pursuant to the request made by the             E
debtor. The execution case was then transferred to the Assistant
Registrar Co-operative Societies (hereinafter referred to as 'ARCS'),
as per the revised Government notification. A fresh notice was issued
on 9.5.2005 for auction sale to be held on 17.6.2005, as no further payment
was made by the debtor till that date.                                         F
       5. The debtor's brother filed a Writ Petition before the High Court
of Karnataka at Bangalore being Writ Petition No. 15737 of 2005,
challenging the sale proclamation. The High Court passed an interim
order on condition of payment of 25% of the awarded amount within
two weeks. In view of the interim order passed by the High Court, the          G
auction sale scheduled on 17 .6.2005 stood postponed. The Writ Petition
filed by debtor's brother was, however, disposed of on 29.6.2005 with
an observation to consider his objection.
      6. In the meantime auction sale was proposed to be held on
18.8.2005, but in view of the aforementioned High Court order the auction      H
108            SUPREME COURT REPORTS                         [2016] 11 S.C.R.


A     sale was postponed. The objection filed by the debtor's brother was
      considered on eight dates. He, however, filed a memo before ARCS on
      21.12.2006 for withdrawal of his objection. The said objection was finally
      dismissed on I 61h July, 2007.
            7. On 30.4.2007, appeal preferred by the debtor challenging the
B     award dated 2.1.2004 was dismissed by the KarnatakaAppellate Tribunal,
      Bangalore. That decision has not been challenged.
             8. Once again a notice for auction sale of the mortgage property
      was issued on 18.7.2007, fixing the date of auction on 28.08.2007. The
      debtor filed a Writ Petition No. 13204 of2007 (CS-DAS), challenging
c     the sale proclamation. The High Court by order 27.08.2007 granted
      interim protection to the debtor on condition of depositing 40% of the
      awarded amount within two weeks, failing which the protection would
      stand vacated. The debtor had deposited Rs.1,00,000/- on 21.8.2007.
      He deposited further amount of Rs. 50,000/- on 27.8.2007 and assured
      to pay Rs. 50,000/- on 30.8.2007. On his request the auction sale fixed
D     on 28.8.2007 was postponed.
             9. As the debtor failed to pay the balance awarded amount as
      directed by the High Court, again a notice was issued on 9 .10.2007
      fixing the auction sale on 12.11.2007. The debtor filed memo before
      the High Court in Writ Petition No. 13204 of2007 (CS-DAS), on the
E     basis of which the said Writ Petition was dismissed as withdrawn having
      become infructuous.
            · I 0. As the balance awarded amount was not forthcoming, a fresh
      notice for auction was issued on 30.11.2007, fixing the date of auction
      sale as 27 .2.2008. The debtor then filed a fresh Writ Petition No. 3098
 F    of2008 (CS-DAS) challenging the auction sale. The High Court vide
      order dated 25.2.2008 showed indulgence to him and stayed the auction
      sale scheduled for 27.2.2008 subject to the debtor depositing Rs.
      I 0,00,000/- (Rs. Ten Lakhs only) within six weeks. It was made clear
      that ifthe debtor failed to pay the amount as directed, the protection as
G     given shall stand vacated and then it would be open to the bank to proceed
      with the sale of mortgage property.
             11. The debtor once again failed to pay the amount as directed
      by the High Court vide order dated 25.2.2008. As a result, a fresh
      notice forauction sale was issued on 28. 7.2008 fixing the date for auction
 H    as 10.9.2008. The Respondent-Bank had obtained valuation report which
   P. M. ABUBAKAR v. STATE OF KARNATAKA AND ORS.                               109
               [A. M. KHANWILKAR, J.]

estimated the value of the mortgage property at Rs. 44,80,000/-. The            A
debtor was served with the notice of the auction sale. That notice was
also published in the local Newspaper and by proclamation and tom tom.
The debtor did not file any objection to the sale. The auction sale was
accordingly, held on I 0.9.2008, in which the appellant- auction purchaser
was the highest bidder for Rs.51,50,000/- . The debtor then filed objections
                                                                                B
before the ARCS for setting aside the sale. That objection after due
enquiry was rejected by the ARCS on 14.10.2008. That order has not
been cha!lenged.
       12. Besides the objection filed before ARCS, the debtor also filed
a writ petition before the High Court of Karnataka at Bangalore being
Writ Petition No. 12901/2008 (CS-DAS), challenging the sale in favour
                                                                                c
of the auction purchaser. The High Court once again showed indulgence
to the debtor by passing conditional interim order on 7. I 0.2008.directing
the debtor to deposit Rs.5,00,000/- within three weeks failing which the
interim protection would cease to operate. The debtor deposited Rs.
5,00,000/-on 3.11.2008.                                                         D
       13. Significantly, the Writ Petitions filed by the debtor being Writ -
Petition No. 3098/2008 and Writ Petition No. 12901/2008 came to be
dismissed by the High Court on 3.12.2008. By these Writ Petitions, the
debtor had challenged the auction sale with a prayer to set aside the
auction in favour of the auction purchaser. With the dismissal of the said - E
Writ Petitions, the challenge to the auction sale of the subject property
on l 0.09.2008 became final. Indeed, the debtor filed Writ Appeal No.
1914/2009 against the rejection of his writ petitions. That was disposed
of on the basis of statement made by the debtor that writ appeal filed by
him before the Karnataka Appellate Tribunal against the award dated
2.1.2004 was pending. That statement was incorrect as the said appeal         F
(Appeal No. 419/2004) was already dismissed on 30.4.2007. Because
of the said misleading statement made by the debtor, the High Court
vide order dated 15.1.2009, whilst disposing the writ appeal observed
that it would be in the fitness of things for the Tribunal to take up the
appeal on merits expeditiously preferably within six weeks. It also G
observed that the objections filed by the debtor against the auction sale
be considered in accordance with law.
      14. The Sales Officer on 17.2.2009, after due consideration of
the matter recommended confirmation of the sale in favour of the auction
purchaser. On the basis of the said recommendation, ARCS passed a               H
110            SUPREME COURT REPORTS                          [2016] I l S.C.R.


A     detailed order on 2.3.2009, confirming the sa.le in favour of the auction
      purchaser. Thereafter, Sale Deed in Form No. 10 was executed in
      favour of the auction purchaser on 5.3.2009; and sale certificate was
      also issued in his favour.
              15. The debtor, however, chose to file appeal before the Deputy
B     Registrar of Co-operative Societies, Udupi District (DRCS) against the
      order ofconfirmation of sale dated 02.03 .2009, being appeal No. 07/08-
      09. The DRCS entertained the said appeal and by his order dated
      18. 7 .2009 held that the sale was in accordance with the Rules but it was
      a case of under valuation of the property. On that ground, the confinnation
      of sale was set aside on condition that the debtor shall deposit Rs.
c     59,46,965/- with interest at 6% p.a. from 13.2.2009 till payment. The
      operative order passed by Deputy Registrar Co-operative Societies reads
      thus:
                                          "ORDER
D                 The confirmation order passed by the Asst. Registrar
              Co-operative Societies also Recovery Officers Court in case
              No. AR38/case/83/Executive/82/08-09 dated 02-03-2009 is
              hereby set-aside.
                   The Petitioner should remit the below mentioned amount
 E            within four weeks from the date of this order-
                   1) Auction amount                   Rs. 51,50,000-00
                   2) Registration charf(es                4,84,465-00
                   3) Solatium account                     2,57,500-00
 F                 4) Khatha expenses                        25,000-00
                   5) Court expenses                         20,000-00
                   6) Other expenses                         10,000-00

                                         Total   Rs.      59,46,965-00
 G

              He has to remit at 6% from 13-02-2009 until depositing the
              money at Mahalakshmi Co-operative Bank (Ltd), Udupi.
              Under the said head the court charges and other charges
              shall born by the said bank and Respondent No. (4) equally
 H            (i.e. the person who purchased the property in auction). After
   P. M. ABUBAKAR v. STATE OF KARNATAKA AND ORS.                                111
               [A. M. KHANWILKAR, J.]

        remitting the balance amount, the bank shall transfer the                A
        same to the respondent No. (4) within 3 days.
             This order pronounced in the open court today i.e. 011
        J8~07-2009.
                                                                Sd/-
                                 Deputy Registrar of Co-op. Societies            B
                                             Udupi District, Udupi."
      Even this order has not been challenged by the debtor and was
allowed to attain finality. At the same time, the debtor did not deposit
the amount as directed in the said order.
       16. The auction purchaser and the bank being aggrieved by the             c
order passed by the DRCS, preferred Writ Petition No.23690/2009 and
23196/2009 (CS-DAS) respectively. These writ petitions were heard by
the learned Single Judge. He opined that considering the wide difference
between the high value of the property and the awarded amount, there
was no necessity to sell the entire property. In that, the property consisted    D
of a building and also vacant property. The learned Single Judge was of
the opinion that the reason recorded by the Appellate Authority (DRCS)
was just and proper and did not warrant any interference in exercise of
writ jurisdiction. As a result, the writ petitions filed by the auction
purchaser and the Bank were dismissed by a common judgment dated
 11.01.2010.                                                                     E

       17. The auction purchaser and the Bank preferred separate Writ
appeals, being W.A. No. 1006/2010 (CS-DAS) and W.A. No. 2433/
2010 (CS-DAS) respectively. The Division Bench of the High Court
vide its common judgment dated 24.8.2011 disposed of both the appeals.
The Division Bench noted that the Appropriate Authority concerned was            F
competent to set aside tl}e sale even if there was no application for
setting aside the sale or factually such application has already been
rejected. It noted that from the orders of DRCS and the learned Single
Judge, it was evident that the debtor did not fulfill.his obligation in spite
of repeated opportunity given to him to pay the awarded amount. Even             G
after noting this fact, the Division Bench opined that as the property in
question was under valued at the time of auction sale, no fault could be
found with the discretion exercised to set aside the sale under proviso to
Sub rule 6(a) of Rule 38. On that finding, the Division Bench rejected
the plea of the debtor and the Bank that without a pre deposit of the
awarded amount as required under Rule 38 and that too within the time            H
112             SUPREME COURT REPORTS                         f20 I 61 I I S.C.R.


A     prescribed under the said Rule, the Appropriate Authority could not have
      set aside the sale. The Division Bench then adverted to the memo of
      calculation filed by the debtor and proceeded to pass order, which in its
      opinion was just and proper so as to adjust equities between the parties.
      The relevant extract of the impugned judgment, reads thus:
B            '"11. A memo of calculation filed by the advocate for
              Re~pondent No. 5 on  11. 8.2011 indicating the different
             amounts deposited by the appellant is as under:
                               Memo of Clllcul"tion
              (a) Amount deposited by the
c                   Appellant on 10.09.2008:-Rs. 7, 72,5001- interest @
                                                8% for 2 years 11 111onths
                                                  Rs. 1,80,2501- (A)
              (b) Amount deposited by the
D                   Appellant on 25. 10.2008:-Rs.43, 77,5001- Interest
                                              8% for 2 years 10 months
                                                  Rs. 9,92,2331- (B)
              (c) Sta111p duty for registration
                    paid on 06.03.2009:-          Rs. 4,84,4651- imerest @
 E
                                                8% for 2 years 6 months
                                                  Rs. 96,8931- (C)
                                                  (A)+(B)+(C) =Rs.12, 69, 3 761-
              (D)
 F
              (i)   A111ount in deposit with
                    A.R.C.S. from 25.10.08:-Rs. 20,82,6161- interest@
                                                  4% for 2 yrs 10 months
                                                  Rs. 2,36,0301- (E)
G             (ii) Amount deposited by the
                    Respondent No.5 on
                    0610212010:-                  Rs. 41,69,200/- imerest @
                                                  4% for 1 yrs 6 months
                                                  Rs. 2,50,1521- (F)
H
   P. M. ABUBAKAR v. STATE OF KARNATAKA AND ORS.                        113
               [A. M. KHANWILKAR, J.]

      (iii) Amount in F.D. On orders                                     A
           of this Hon 'ble Court:-     Rs. 62,51,816/- interest@
                                        8% for 3 months
                                        Rs. 1,25,0361- (G)
                           (E)+(F)+(GJ=Rs. 6,11,2181- (H)                B
         12. He has calculated the interest deposited by the
      appellant - purchaser for different periods as stated above.
      He has also shown the amount in deposit with the ARCS
      after deducting the amount that has to be paid to the appellant
      - bank.                                                            C
          13. The appellant - bank has also filed a calculation memo
       indicating the actual claim amount, the date of receipt of
       claim amount, number of days from the auction date till the
       amount received on 13.3.2009, rate of interest and the actual
       ainount of interest payable apart from the expenses incurred      D
       by them after 10.9.2008for various litigations. This amount
     . totally comes to Rs. 3,05,1491- as indicated below:
     1.   Date of Receipt of Claim amount
          13-3-2009
                                                                         E
     2. Claim amount                     Rs. 30,67,384.00
     3. Number qf days from auction date
        10-9-2008 to amount received
        date 13-3-2009                          160 days
     4. Rate of interest                               17%
                                                                         F
     5. /merest receivable for 160 days        Rs. 2,28,583.00
     6. Court expenses spent qfter
        10-9-2008 for various disputed         Rs. 76,566.00

                                Total          Rs. 3,05,149.00           G

      14. So far as the auction purchaser is concerned, we note
that he has made the following payments:

                                                                         H
114    SUPREME COURT REPORTS                         f2016l l 1 S.C.R.



A     1.   10.9.2008                           Rs.   7,72,5001-
      2.   25.10.2008                          Rs. 43, 77,5001-
      3.   Stamp duty for registration
           Paid on 6.3.2009                    Rs. 4,84,4651-
         15. As per the orders of the DRCS, he has to receive Rs.
B     59,46,9651- includi11g solatium with interest at 6% per an11um
      from 13.2.209. Till date so jar as auction purchaser is
      concerned not even a single pie is paid back to him. In case,
      the auctio11 purchaser were to have the confirmation of sale
      in his favour, this calculation would not be of any releva11ce.
      The fact remains the concerned authority has exercised the
c     discretion and there is prima facie material to indicate there
      was under-valuation of the property as well. But this does
      not mean the auction purchaser who has parted with different
      amount by selling his own property should be put to financial
      loss apart from hardship. So jar as the ba11k is concerned,
D     the amou11t was lying with the Recovery Officer and only on
      13.3.2009 they got the claim amount. However, this claim
      amount includes interest only upto the date of auctio11 and
      not the subsequent interest payable. If the respondent -
      borrower intends to retain his property for the reasons best
      known to him, either for emotional attachment or other
E
      reason, he has to compensate the purchaser for causing the
      loss to him. The amount of Rs. 59,46,9651- i11cludes solatium
      of Rs. 2,57,5001-, but it does not spell out the interest he
      would have got on this amount or the profit he could have
      got on the property which he sold in order to pay the auction
F     price.
         16. In order to meet the ends of justice, it would be just
      and proper to order payment of interest at 12% per annum
      for the date of deposit made by him on different amounts
      indicated above. He shall also be paid a solatium of Rs.
G     2,57,5001- apart from the interest at 12% per annum on all
      the amounts he has spent till the date of payment. So far as
      the bank is concerned, interest has to be paid for 160 days
      and Court expenses of Rs. 76,5661-. The amount was laying
      with the Recovery Officer for quite some time and it cannot
      be the entire fault of the respondent - borrower. Therefore
H
   P. M. ABUBAKAR v. STATE OF KARNATAKA AND ORS.                              115
               [A. M. KHANWILKAR, J.]

        the bank shall get interest at 6% per annum on Rs. 30,67,3841-         A
        for 160 days apart from the Court expenses of Rs. 76,5661-
        spent by them.
           17. with these observations, the appeals are disposed of
        directing the 5th respondent to pay the amount as indicated
        above within a period offour weeks from the date of receipt            B
        of copy of this order, failing which the order of confirmation
        of sale shall stand. "
      18. In spite of the aforementioned order, the debtor did not pay
the amount as directed by the High Court. The matter, accordingly,
proceeded before the Assistant Registrar of Co-operative Societies             c .
(ARCS), who issued a detailed communication to the debtor on
21.12.2011. The ARCS considered the plea taken by the debtor that he
was entitled for certain adjustments and was not required to pay any
further amount. The ARCS did not accept the said stand taken by the
debtor and was of the opinion that the amount as directed by the Division
Bench has not been paid. The ARCS in his communication dated                   D
21.12.2011 has noted that a sum of Rs. 80,64,916/- was payable by the
debtor out of which he had remitted only a sum of Rs. 41,69,200/- on
6.2.2010 and Rs. 20, 19,925/- on 22.9.2011 totaling Rs. 61,89, 125/-. There
was still shortfall of Rs. 18, 75, 791.40 payable by the debtor. The
communication of the ARCS dated 21.12.2011 was challenged by the               E
debtor, by way of Writ Petition No. 48814/201 l(CS-DAS) filed on
29.12.2011 before the High Court of Karnataka at Bangalore.
      19. When the said Writ Petition No. 48814/2011 (CS-DAS) was
pending, the debtor filed an application being IA No. 1/2012 in disposed
of writ appeal No. 1006/2010 (CS-DAS) and writ appeal No. 2433/                F
2010 (CS-DAS), for clarification of the order dated 24.8.2011. On
8.6.2012, the Division Bench passed the following order on the said IA
No. 1/2012, which reads thus:
                         "ORDER ON I.A. No. 112012
        Heard the learned counsel for the applicant, who is J'f•               G
        respondent in WA. No. 243312010 (CS) on I.A. No. 112012
        filed seeking clarification of judgment dated 24.8.2011.
        It is seen that by judgment dated 24.8.2011 this Court allowed
        WA. Nos. 100612010 clw 243312010 with certain directions.
        As could be seen, in paragraph 16 of the judgment the intent           H
116    SUPREME COURT REPORTS                        [2016] 11 S.C.R.


A     of this Court is very clear, that is, the auction purchaser
      appellant in W.A. No. 100612010 should get back his money
      with solatium, interest damages. etc. as specified therein and
      the same was required to be paid by 3"' respondent. No
      mode for payment was specified in the said judgment.
B     However, it is seen that ARCS, 3"' respondent in the app_eals
      has taken his own time in trying to interpret the said order
      by his order which was initially passed on 21.11.2011 and
      thereafter corrected as 21.12.2011 to say that entire amount
      should have been deposited by the 5 h respondent to comply
                                             1



      with the judgment of this Court which we are not agreeable.
c     With the available money, the 3"' respondent -ARCS should
      have first cleared off the amount to the auction purchaser
      with interest, solatium, damages and whatever he is entitled.
      to fro111 out of the amount that was available with 3n1
      respondent. Thereafter, 3"' responde111 should have cleared
D     the money due to the bank, appellant in W.A. 243312010
      alongwith interest at the rate specified therein. If any is
      found in excess he should have given it to 51h respondent.
         In any event, if he had any doubt with regard to the above
      said aspect he should have approached this Court through
E     the Learned Government Advocate by filing an application
      seeking clarification. Instead, he has taken the responsibility
      of trying to interpret the same in the manner known to him
      and also contrary to the intent of this Court. In any event,
      this Court feel there is no justification t~ keep this litigation
      pending forever. Therefore, to put quietus to this litigation it
F     is hereby directed that 3"' respondent ARCS shall i111111ediately
      disburse the entire amount that is required to be paid to the
      auction purchaser and also to the bank within one week
      from today. The excess of amount that re111ains after
      disbursing the amount shall be retained by him u111il further
G     orders of this Court.
        Further, after receiving the amount the bank and the
      auction purchaser shall file me1110 of calculation to seek
      additional interest from the date of the judgment till actual
      date of receipt of money for which they are entitled to.
H     Whether the confusion is at the end of 5111 responde111 qr at
   P. M. ABUBAKAR v. STATE OF KARNATAKA AND ORS.                            ll7
               [A. M. KHANWILKAR, J.]

        the instance of 3"' respondent-ARCS should not be the reason         A
        to deprive the fruits oi the judgment to the auction purchaser
        and the bank. Therefore, they are called upon to receive
      · the entire amount pursuant to the judgment of this Court
        and thereafter file memo to this Court regarding the extent
        of interest they are entitled to for the different period, which
                                                                             B
        will be considered by this Court at the next date of hearing.
            Call this matter on 29.6.2012".
The Division Bench thereafter passed the following order on 29.6.2012,
which reads thus:
      "These two writ appeals were disposed of by common judgment            c
      on 24.8.2011 wherein certain directions were given for re-
      payment of the amount deposited by the auction purchaser
      and also the amount due to the Bank. Though sufficient
      amount was available with the 3rd respondent-ARCS, he tried
      to interpret the order of this Court differently and caused            D
      some delay in making payment to the parties. Though strictly
      there is no mistake on the part of the 5th respondelll-original
      owner in making available the requisite fund in terms of the
      order for refund of money due to the auction purchaser and
      to clear the dues to the Bank, it is because of ARCS trying to
      interpret the order of this Court differently, confusion has           E
      arisen in disbursement of the amount due to the auction
      purchaser and the Bank for which the auction purchqser and
      the Bank should not be made to suffer.
           Insofar as the money that they were required to receive on
      or before 24.9.2011 which they have not received, they are             F
      elllitled to interest for the difference period i.e.,from 24.9.2011
      till they receive the said amoul1f. In that behalf. the ARCS is
      required to pay the interest for the difference period from out
      of the excess amount which is available with him. If the said
      amount is short of interest to be paid for the differe/11 period,      G
      he is directed to call upon the owner to deposit the said
      amount within ten days therefrom or if the amount is sufficient,
      to pay the interest from out of the amount available and to
      return the remaining amount to the origin.al owner of the
      property.
                                                                             H
118            SUPREME COURT REPORTS                         [2016] 11 S.C.R.


A              With this observation, the clarification sought to the
            ;udgment dated 24.8.2011 is clarified.
                It is made clear that the ARCS shall see that the
            clarificatory order dated 8.6.20112 and the order passed
            today regarding interest for the difference period should be
B           implemented within ten days from the date of receipt of a copy
            of this order"
      The Division Bench directed the ARCS to act upon to the clarificatory
      order dated 8.6.2012 and 29.6.2012 respectively and to implement the
      same within 10 days.
c           20. The writ petition tiled by the debtor (against the communication
      dated 21.12.2011 of the ARCS) was allowed by the learned Single Judge
      vide order dated 7.9.2012, which reads thus:
                                          "ORDER

D                An extent of 32 cents in Sy.No. 26017 of Kodavoor village
              in Udupi Taluk belonging to the petitioner was brought to
              sale to recover the outstanding amount due to respondent
              No. 4 financial institution. The said property wds put to
              auction on 10.9.2008 for Rs. 51,50,0001-. The 3ni responde111
              was the successful bidder and he deposited the amount also.
E             On appeal, the Deputy Registrar of Co-operative Societies
              set .aside the order dated 2.3.2009 by which the auction sale
              was confirmed and directed the petitioner to deposit Rs.
              59,46,9651- within four weeks. The 3n1 respondent-auction
              purchaser as well as the 4'" respondent Bank were before
 F            this Court questioning the said order. This Court dismissed
              the writ petitions, against which W.A. Nos. 1006 and 24331
              2010 were filed. This Court disposed of the writ appeals
              with certain directions in as much as the petitioner was
              directed to deposit Rs. 61,89, 1251- which is interest component
              on the auction amount deposited by the 3n1 respondent.
G
              2. It appears, the 3n1 respondent-Assistant Registrar of co-
              operative Societies was of the view that the petitioner was
              required to deposit Rs. 80,64,9161- and there was short-fall
              ojRs. 18, 75,7911-. Hence, an application was filed by the
              petitioner seeking clarification and this Court on two
H
   P. M. ABUBAKAR v. STATE OF KARNATAKA AND ORS.                             119
               [A. M. KHANWILKAR, J.]

       occasions clarified the position and was of the view that the          A
       amount deposited by the petitioner was just and proper.
       Notwithstanding the clarification, made, the impugned order
       at Annexure-A is passed calling upon the petitioner to deposit
       the short:fall on calculation.
       3. When the matter is taken-up, Mr. S.R Hegde Hudlamane,               B
       learned counsel for the 3"1 respondent auction purchaser
       submits that as against the clarificatory order, the auction
       purchaser has filed Special Leave Petition, which is yet to
       come-up before the Apex Court.
       4. In the circumstances, I am ofthe view that no useful purpose        c
       will be served by keeping this writ petition pending in as
       much as the decision to be rendered by the Apex Court in
       the Special Leave Petition filed by respondent No. 3 would
       regulate the present proceedings. Till such time, the matter
       is required to be kept pending by the 2'"1 respondent. Hence
       the following order:-                                                  D

         The petition is allowed. The impugned order is set aside.
       The proceedings are remanded to 2"'1 respondent, who shall
       keep pending adjudication. The proceedings shall be
       regulated by the decision to be rendered by the Apex Court".
                                                                              E
      21. In the present appeals filed by the appellant-auction purchaser
before this Court, he has challenged the judgment rendered in writ appeal
dated 24.8.2011 as well as both the orders passed on clarification
application dated 8.6.2012 and 29.6.2012 respectively. The debtor, on
the other hand, has filed appeal against the judgment of the Division
Bench dated 24.8.2011 in Writ Appeal No. I 006/20 I 0.                        F
       22. We have heard the learned counsel for the parties at length.
From the indisputable facts mentioned in the preceding paragraphs, it is
evident that the Award passed by the Competent Authority on
02.01.2004 became final after the dismissal of appeal (Appeal No. 419/
2004) by the Karnataka Appellate Tribunal, Bangalore on 30.04.2007.           G
The debtor did not pay the awarded amount in spite of repeated
opportunity given to him on every occasion. Thus, for effectuating the
Award and for recovery of the outstanding dues from the debtor, his
mortgage property was required to be auctioned. That auction sale was
finally held on I Oth August 2008. The appellant- auction purchaser turned
                                                                              H
120            SUPREME COURT REPORTS                          [2016) 11 S.C.R.


A     out to be the highest bidder. The debtor unsuccessfully attempted to
      apply for setting aside the auction sale. He also challenged the sale by
      way of Writ Petition No. 1290 I /2008. Even the Writ Petition was
      dismissed on 3rd December 2008. In the said writ petition, the debtor
      had also prayed for setting aside the sale. That prayer was also rejected.
      Indeed, the debtor resorted to remedy of writ appeal being Writ Appeal
8
      No. 1914/2009. That was disposed of by recording an incorrect statement
      of the debtor that his appeal against the Award was still pending. As a
      matter of fact, the appeal preferred by the debtor before the Karnataka
      Appellate Tribunal being Appeal No.419/2004, was already dismissed
      on 30'h April, 2007. As a result of which, the Award passed against him
C     had become final.
             23. Be that as it may, it is common ground that the debtor did not
      prefer application for setting aside the sale, inconformity with the remedy
      provided in that behalf in terms of Section 89A of the Karnataka
      Cooperative Societies Act, 1959 read with Rule 38 of the Karnataka
D     Cooperative Societies Rules. That remedy could be availed by the debtor
      only after depositing the awarded amount together with interest thereon
      with the Recovery Officer, in terms of Rule 38(4)(a) of the Rules. The
      application as filed by the debtor was dismissed by the ARCS on
      14.10.2008. Resultantly, the Competent Authority proceeded to confirm
      the auction sale on 02.03.2009, followed by grant of a certificate of sale
 E    and execution of a Sale Deed in the prescribed Form. The sale of the
      subject property thus, became final.
             24. The debtor, however, was ill advised to prefer an appeal
      before the Deputy Registrar (CS) of Cooperative Societies, against the
      decision of the Competent Authority confirming the auction sale. For,
 F    remedy of appeal before that Authority could be availed only in terms of
      Section 106 of the Act, against an order passed by the Authority
      (Registrar) in exercise of powers ascribable to the provisions referred
      to therein. The order of confirmation of sale is ascribable to Section
      89A of the Act read with Rule 38 of the Rules. No remedy of appeal
 G    against that decision is provided. Section 106 of the Act does not provide
      for an appeal against the order confirming an auction sale, passed under
      Section 89A read with Rule 38. Section 89A of the Act read with Rule
      38 of the Rules provide for a special dispensation. Thus understood, the
      order passed by the Deputy Registrar (CS) on the appeal preferred by
      the debtor being Appeal No.7/2008-2009, is without jurisdiction. The
 H
   P. M. ABUBAKAR v. STATE OF KARNATAKA AND ORS.                                 121
               [A. M. KHANWILKAR, J.]

learned Single Judge as well as the Division Bench has completely glossed         A
over this crucial aspect.
       25. The order passed by the Deputy Registrar (CS) dated l8 1h
July 2009, assuming that it is ascribable to Rule 38(6)(a) as held by the
High Com1, the fact remains that the debtor failed to comply with the
said order requiring him to pay an amount ofRs.59,46,965/- along with             B
interest thereon within the specified time. On account ofnon-compliance
of that direction, the relief granted by the Deputy Registrar (CS) in terms
of order dated I 81h July 2009 of setting aside the auction sale became
ineffective. Admittedly, the debtor deposited a sum ofRs.41,69,200/- on
61h February 20 I 0 and Rs.20, 19,925/- on 22nd September 2011. That
was not in compliance with the order dated l 81h July 2009.
                                                                                  c
       26. The fact that Writ Petitions were filed by the auction purchaser
and the Bank against the order of Deputy Registrar (CS) dated l 81h July
2009, that could not extricate the debtor from complying with the order
of Deputy Registrar (CS) which he allowed to attain finality. As a matter
of fact, the said order was passed on an appeal preferred by the debtor           D
himself and thus he was bound by the same.
        27. The debtor cannot be heard to claim benefit of the proceedings
in the forn1 ofWrit Petitions followed by Writ Appeals filed by the auction
purchaser and the Bank. For, it is noticed that the Division Bench in its
order dated 24d• August 2011 determined the liability of the debtor to pay        E
Rs.59,46,965/- along with solatium and interest thereon. At least in terms
of that decision, the debtor ought to have paid the entire amount.
However, there was still a shortfall ofRs.18, 75, 791.40. The debtor, instead,
represented before the ARCS that he was not liable to pay any further
amount in excess of the amount already deposited by him until 22nd                 F
September 2011 totalling Rs.61,89, 125/-. In our view, in the facts of the
present case, it is only upon deposit of the entire awarded amount, the
request of the debtor to absolve him of his liability could be entertained.
       28. The argument pursued on behalf of the debtor that there was
calculation error in determination of his liability to the extent of              G
Rs.59,46.%5/- including the interest accrued thereon as directed; and
not giving adjustment of the deposits already made prior to the order
passed by the Division Bench on 24t1t August 2011 as was manifest from
the no dues certificate given by the Deputy Commissioner, Commercial
Tax vide letter dated 2ot1t September 20 I 0, cannot be countenanced. In
the first place, the communication dated September 2010 was tendered              H
122             SUPREME COURT REPORTS                          [2016] 11 S.C.R.


A across the Bar for the first time before this Court during the argument.
  It was not made part of the record before the High Court nor was pressed
  into service before the High Court. Moreover, the said communication is
  In respect of the effect of exemption of 90% of the interest under Tax
  Settlement Scheme. Thirdly, the matter on hand arises out of the order
  passed by the Deputy Registrar (CS) setting aside the sale confirmed in
B
  favour of the auction purchaser.
             29. As aforesaid, the debtor unsuccessfully challenged the auction
      sale and prayed for setting aside the same by filing writ petitions. That
      relief has been rejected. In that, a formal application for setting aside the
      sale filed by the debtor was rejected by the ARCS on 14. 10.2008. The
c     appeal preferred by the debtor before the Deputy Registrar (CS) was
      against the decision of the Competent Authority confirming the auction
      sale on 02.03.2009. That it was not maintainable under Section 106 of
      the Act. The Deputy Registrar (CS) had no jurisdiction.
         30. Further, once the auction sale is confirmed by the Competent
D Authority, it is not open to the Authority to exercise power under Rule
  38(6), to set aside the sale. That would be against the spirit oflegislative
  intent of giving finality to the auction sale process upon passing of an
  order of confirmation of sale.
             31. It is only the Authority referred to in Rule 38, who could have
 E    set aside the sale by recording reasons in writing in exercise of powers
      under Rule 38 of the Rules, albeit before passing an order confirming
      the auction sale. Rule 38 reads thus:
                "38. Attachment am/ sale of immoveable property.- {1)
                Immoveable property shall not be sold in execution of a
 F              decree unless such property has been previously attached:
                 Provided that where the decree has been obtained on the
                basis of a mortgage of such property it shall not be
                necessary to attach it.
                (2) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
 G
                (3) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
             (4) (a) Where immoveable property has been sold, any person
                 either owning such property or holding an interest therein
                 by virtue of a title acquired before such sale may apply to
 H              have the sale set aside on his depositing with the Recovery
P. M. ABUBAKAR v. STATE OF KARNATAKA AND ORS.                        123
            [A. M. KHANWILKAR, J.]

    Officer.-                                                         A
   (i) For payment to the purchaser a sum equal to 5 per cent
      of the purchase money; and
   (ii) for payment to the decree-holder the amount of arrears
      specified in the proclamation of sale as that for the
      recovery of which the sale was ordered together with            B
      interest thereon and the expenses of attachment, if any,
      and sale and other costs due in respect of such amount,
      less amount which may since the date of such proclamation
      have been received by the decree-holder.
   (b) If such deposit and application are made within 30 days        c
     from the date of sale, the Recovery Officer shall pass an
     order setting aside the sale and shall repay to the purchaser
     the purchase money so far as it has been deposited together
     with the 5 per cent deposited by the applicant.
          Provided that, if more persons than one have made           D
    deposit and application under this sub-n1le, the application
    of the first depositor to the Recovery Officer shall be
    accepted:
           [Provided further that where the purchaser is the
     Government, the sale be set aside if the person owning the       E
     property or any person interested, therein,-
  (i) Makes the application within sixty days from the date of
     sale along with,-
   (a) A sum equal to five per cent of the purchase money for
     payment to Government; and
                                                                      F

   (b) Fifty per cent of the amount due under the decree for
     payment to the decree holder; and
  (ii) Pay the balance within thirty days thereafter i.e., within
     ninety days from the date of sale.]                              G
   (c) If a person applies under sub-rule (5) to set aside the
     sale of an immoveable property. he shall not be entitled to
     make an application under this sub-rule.
  (5) (a) At any time within 30 days from the date of the sale of
                                                                      H
124     SUPREME COURT REPORTS                        [2016] l l S.C.R.



A       an immoveable property, the decree-holder or any person
        entitled to share in a rateable distribution of the assets or
        whose interests are affected by the sale, may apply to the
        Recovery Officer to set aside the sale on the ground of a
        material irregularity or mistake or fraud in publishing or
        conducting it:
B
                Provided that no sale shall be set aside on the ground
         of irregularity or mistake or fraud unless the said Recovery
         Officer is satisfied that the applicant has sustained
         substantial injury by reason of such irregularity, mistake
         or fraud:
c
              [Provided further where the purchaser is
         Government the sale will be confirmed,-
       (a) After the expiration of sixty days where no application
         to have sale set aside is made under sub-rule (4); or
D      (b) After the expiration of ninety days where an application
         to set aside under sub-rit!e (4) is made but the balance of
         the amount due under the decree is not deposited within
         ninety days from the date of sale.]
       (c) If the application be allowed, the said Recovery Officer
E        shall set aside the sale and may direct a fresh one.
      (6) (a) On the expiration of thirty.days from the date of sale,
         if no application to have the sale set aside, either under
         sub-rule (4) or sub-rule (5) is made or if such application
         has been 111ade and is rejected, the said Recovery Officer
F        shall make an order confirming the sale:
                Provided that if he shall have reason to think that
         the sale ought to be set aside notwithstanding that no such
         application has been 111ade or on grounds other than those
         alleged in any application which has bc;en 111ade and
G        rejected, he 111ay, after recording his reasons in writing,
         set aside the sale;
                (b) Whenever the sale of any immoveable property
         is not confir111ed or is set aside, the deposit or the purchase
         money, as the case may be, shall be returned to the
H        purchaser.
   P. M. ABUBAKAR v. STATE OF KARNATAKA AND ORS.                             125
               [A. M. KHANWILKAR, J.]

      (7) On the confirmation of a sale under this rule, the Recovery         A
          Officer shall grant a certificate of sale bearing his seal
          and signature to the purchaser, and such certificate shall
         state the property sold and the name of the purchaser, and
          it shall be conclusive evidence of the fact of the sale to
          such purchaser.
                                                                              B
      (8) the land purchased by Government in satisfaction of any
         decree prior to commencement of the Karnataka Co-
          operative Societies (V amendment) Rules 1977 shall be
         reconveyed to the person who own the property or held an
          interest therein by virtue of a title acquired before the sale
          if he makes application for such receonveyance and                  c
          deposits with the recovery officer with in a period of ninety
          days from the date of coming into force of these rules, -
              (a) five per cent of the purchase money as solatium;
             (b) purchase money at the interest of eight and a half           D
         per cent per annum from the date of sale up to the date of
         deposit."
       32. The order passed by the learned Single Judge dated 7'h
December 2012 to set aside the communication of the Assistant Registrar
(CS) dated 21" December 2011 cannot extricate the debtor from the             E
consequences of auction sale having become final on issuance of sale
certificate and execution of the agreement in favour of the auction
purchaser. Similarly, the fact that the debtor deposited certain amounts
after the decision of the Division Bench cannot come to his aid. For, he
ought to have deposited the awarded amount along with interest accrued
thereon and that must be accepted by the auction purchaser as satisfaction     F
of the order of the Division Bench of the High Court. Admittedly, the
debtor had failed to pay the entire awarded amount. Significantly, the
auction purchaser did not acquiesce of the order of the Deputy Registrar
or that of the High Court, but has challenged the same in the present
appeals.                                                                      G
       33. We are also of the considered opinion that the writ appeal
having been disposed of, in the guise of clarification, the Division Bench
could not have passed any order at the instance of the debtor who had
failed to challenge the decision of the Deputy Registrar. The writ appeals
were filed by the auction purchaser and the Bank assailing the wrongful
                                                                              H
126                SUPREME COURT REPORTS                      [2016) 11 S.C.R.



A     rejection of their Writ Petitions by the learned Single Judge. As the
      decision of the Deputy Registrar deserves to be set aside, the debtor
      cannot succeed on the basis of some observations made in the impugned
      judgments of the Division Bench or forthat matter by the learned Single
      Judge and including some infinnity in the letter of the Assistant Registrar
      (CS) dated 21" December 2011.
B
             34. That takes us to the decision of this Court in the case of
      Annapurna vs. Mallikarjun & Anr. 1 That decision is in respect of
      provisions of Order 21 Rule 89 ofC.P.C. The question decided in this
      case is whether the time limit prescribed in Article 127 of the Limitation
      Act, 1963 would come into play even in respect of an application to set
 c    aside sale in terms of Order 21Rule89 of the Code of Civil Procedure.
      In the present case, the debtor did not choose to file an application for
      setting aside the sale in terms of Rule 38(4) of the Rules at all. Instead,
      he preferred an appeal under Section I 06 of the Act before the Assistant
      Registrar after the order of confirmation of sale was passed by ARCS
D     in favour of the auction purchaser. Such appeal under Section I 06 of the
      Act was not maintainable. The decision of confirmation of sale is not
      ascribable to any of the provisions expressly referred to in Section I 06
      of the Act, in respect of which remedy of appeal is provided. Further,
      the order passed by the Deputy Registrar dated l 81h July 2009 in favour
      of the debtor to set aside the auction sale on conditions specified therein,
 E
      in our view, is not ascribable even to an order passed under Rule 38(6).
      That discretion has to be exercised only by the Recovery Officer and
      more importantly before the order of confirmation of auction sale. ·
             35. The counsel for the debtor, however, placed reliance on two
      decisions of this Court in J.Rlljiv Subrllmllniyan & Anr. Vs. Pllndiyas
 F    & Ors. 1 lllld Vasu P.S/1etty rs. Hotel Vamlana Palace & Ors. .1 Emphasis
      was placed on paragraphs 18 and 29 of the decision in Subramaniyan's
      case (supra). Firstly, that decision is in respect of proceedings under the
      Securitization and Reconstruction of Financial Assets and Enforcement
      of Security Interest Act, 2002. Further, the decision is on the facts of
 G    that case. In this case, the grievance regarding under valuation of the
      property could have been raised by the debtor by way of a formal
      application to be filed for setting aside the sale, as per the statutory
      provisions.(Rule 38). That contention is not relevant to answer the matters
      1
        (2014) 6 sec 397
      2 (2014) 5 sec 651
 H    '(2014)5 sec 660
   P. M. ABUBAKAR v. STATE OF KARNATAKA AND ORS ..                            127
               [A. M. KHANWILKAR, J.]

in issue, in the present case. Reliance was then placed on the dictum in       A
paragraphs 23 and 25 in the case ofShetty (supra) to contend that inaction
or intentional conduct of the debtor does not extricate the Bank from
following mandatory conditions including proper valuation of the property.
We fail to understand as to how this decision will come to the aid of the
debtor who has failed to pursue statutory remedy for setting aside the
                                                                               B
sale as per Rule 38; and moreso after the sale has already been confirmed
in favour of the auction purchaser. Notably, even after the confirmation
of sale, the Deputy Registrar showed indulgence to the debtor.to deposit
Rs.59,46,965/- with interest only at 6% from J3•h February 2009 till the
date of payment. The debtor, however, remitted the amount firstly on 61h
February 20 I 0 a sum ofRs.41,69,200/- and thereafteron 22"d September         c
2011 Rs.20, 19,925/-. It was not in conformity with the order passed by
the Deputy Registrar dated 181h July 2009.
       36. Taking any view of the matter, therefore, we must hold that
the High Court committed manifest error in dismissing the Writ Petitions
filed by the appellant- auction purchaser challenging the decision of the      D
Deputy Registrar (CS) dated l8 1h July 2009. The High Court ought to
have allowed the Writ Petition as the Deputy Registrar had no jurisdiction
to entertain appeal against the order of confirmation of sale issued under
Section 89A read with Rule 38 of the Rules; and also because, admittedly,
the debtor failed to pay the awarded amount in spite of repeated
opportunities given to him from time to time. Moreover, the debtor cannot      E
succeed in the Writ Petition filed by the auction purchaser and the Bank
against the decision of the Deputy Registrar and get higher or further
relief in such proceedings. Thus,. the Division Bench having finally.
disposed of the writ appeal ought not to have entertained the application
preferred by the debtor in the guise of clarification and to pass any order     F
thereon - which would enure to the benefit of debtor who is in default,
having become functus officio.
      37. Accordingly, we allow the appeals preferred by the auction
purchaser (P.M.Abubakar) being Civil Appeals arising out of SLP(Civil)
Nos. 30130-30131/2012 and SLP(Civil) Nos. 33314-33315/2012 in the · G
above terms. The order passed by the Deputy Registrar (dated
18.7.2009); and of the High Court(dated 11.01.2010; 24.8.2011, 8.6.2012
and 29.6.2012) confirming the order of the Deputy Registrar of setting
aside the sale of the subject mortgage property in favour of the auction
purchaser, are hereby set aside.The Civil Appeals arising out of
                                                                               H
128               SUPREME COURT REPORTS                  [2016) 11 S.C.R.


A     SLP(Civil) Nos. 25613-25614/2013 filed by the debtor (Keshava N.
      Kotian) are dismissed with observation that the Appropriate Authority
      shall proceed to disburse the amount already deposited by the debtor
      and including the amount of sale proceeds, in accordance with law
      forthwith. No order as to costs.
B     AnkitGyan                                            Appeals disposed of.




                                                                         If;