As per case facts, recovery certificates were issued against Respondent Nos. 1 and 2 for significant amounts, leading to the attachment of articles and jewellery in their lockers. An auction ...
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Shabnoor
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.9090 OF 2014
The Vishweshwar Sahakari Bank Ltd.,
having its office at 471/472,
Gultekdi, Market Yard, Pune 411 037… Petitioner
V/s.
1.Omprakash B. Khake
2.Pranav Omprakash Khake,
both adults, Indian Inhabitants,
R/at Flat Nos.10 & 11, Chinar
Apartment, K.B. Joshi Marg,
Shivaji Nagar, Pune 411 005
3.The Divisional Joint Registrar,
Cooperative Societies, Pune,
Sakhar Sankul, Shivaji Nagar,
Pune 411 005
4.The Deputy Registrar,
Cooperative Societies, pune
Ruturang Sankul, C-D Building,
1st Floor, 49/1, Parvati Pune
Satara Road, Aranyeshwar Corner,
Pune 411 009
5.The Special Recovery Officer,
The Vishweshwar Sahakari Bank
Ltd., having its office at
471/472, Gultekdi,
Market Yard, Pune 411 037
6.The State of Maharashtra
7.Ranka Jewellers, through
1
SHABNOOR
AYUB
PATHAN
Digitally signed
by SHABNOOR
AYUB PATHAN
Date: 2026.05.07
11:51:02 +0530
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Pradeep Pimpalgaonkar,
Address: Survey No.15/17,
Karvey Road, Main Road,
Bhalekar Chawl, Erandwane,
Pune 411 004… Respondents
Ms. Varsha Palav with Mr. Prajwal Ghadge, for the
Petitioner.
Mr. Anil Anturkar, Sr. Advocate with Mr. Prathamesh
Bhargude, for Respondent No.1.
Ms. Aloka A. Nadkarni, AGP, for the State – Respondent
Nos.3, 4 to 6.
Ms. Pratibha D. Shelake, for Respondent No.5.
Mr. Sanket S. Bora a/w Vidhi K. Punamiya, & Ms.
Amiya R. Das i/b SPCM Legal, for Respondent No.7.
CORAM :AMIT BORKAR, J.
RESERVED ON :MAY 4, 2026
PRONOUNCED ON:MAY 7, 2026
JUDGMENT:
1.By the present Petition instituted under Article 227 of the
Constitution of India, the Petitioner has assailed the legality,
propriety, and correctness of the Judgment and Order dated 17
July 2014 rendered by Respondent No. 3 in Revision Application
No. 23 of 2014.
2.The factual matrix leading to the filing of the present
Petition, in brief, is that Respondent No. 4 issued a Recovery
Certificate dated 04 May 2011 for recovery of an amount of
1,25,44,847/- together with interest at the rate of 14% per₹
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annum in Recovery Application No. 2127/101/10-11 against M/s
Opel Logistics, a partnership firm of which Respondent Nos. 1 and
2 are partners. Respondent No. 4 further issued another Recovery
Certificate of even date for recovery of 2,20,82,387/- in Recovery₹
Application No. 2131/101/10-11 against M/s Mallikarjun
Transports, a proprietary concern of Respondent No. 1. In
pursuance of the aforesaid Recovery Certificates, execution
proceedings were initiated, and in the course thereof, the movable
assets belonging to Respondent Nos. 1 and 2, being Locker Nos. B-
46 and D-53 maintained with the Petitioner at its Erandwana
Branch, Pune, came to be attached in accordance with law.
3.Respondent No. 5 thereafter issued a notice dated 04
September 2013 to Respondent Nos. 1 and 2 intimating them that
the articles and jewellery contained in Locker Nos. B-46 and D-53,
which had earlier been inventoried on 09 March 2012 and
attached pursuant to the order dated 05 June 2012, were proposed
to be sold by public auction on 06 September 2013 at 10:30 a.m.
at the Erandwana Branch of the Petitioner. The said notice further
directed Respondent Nos. 1 and 2 to remain present and hand over
the keys of the lockers, failing which the lockers would be forcibly
opened at their risk and cost. Simultaneously, a public notice dated
04 September 2013 was published in a daily newspaper informing
the general public of the proposed auction scheduled on 06
September 2013. On 05 September 2013, Respondent No. 1
addressed an application to Respondent No. 5 seeking
postponement of the proposed auction for a period of two months,
coupled with an assurance that he would repay an amount
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equivalent to the valuation of the ornaments. Respondent No. 1
further undertook that in the event of failure to fulfil the said
assurance, Respondent No. 5 would be at liberty to proceed further
in accordance with law.
4.Upon consideration of the aforesaid request, Respondent No.
5, in exercise of discretionary powers and with the consent of the
parties, deferred the auction scheduled on 06 September 2013.
Such postponement was granted subject to a clear stipulation that
in the event Respondent Nos. 1 and 2 failed to discharge the
outstanding dues on or before 30 October 2013, the auction
proceedings would be conducted thereafter without issuance of a
fresh proclamation, though publication could be effected to ensure
adequate participation and competitive bidding. As Respondent
No. 1 failed to comply with the undertaking and did not repay the
dues within the stipulated period, Respondent No. 5 proceeded
with further steps in execution and, by intimation dated 31
December 2013, informed Respondent Nos. 1 and 2 that the
auction of the attached articles would be conducted on 03 January
2014 at 3:00 p.m. at the Erandwana Branch of the Petitioner. A
public notice dated 01 January 2014 was also issued notifying the
public at large of the scheduled auction.
5.By communication dated 02 January 2014, Respondent No.
1 informed Respondent No. 5 of his inability to remain present at
the scheduled auction on 03 January 2014 on account of his
engagement before the High Court at Aurangabad. Respondent No.
5, by reply of even date, advised Respondent No. 1 to authorize
Respondent No. 2 or any other representative to attend the auction
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proceedings on his behalf. On 3 January 2014, the auction of the
articles and jewellery contained in Locker Nos. B-46 and D-53 was
duly conducted in the presence of panch witnesses as well as a
qualified valuer. Three bidders participated in the auction process,
and the highest bid of 72,00,000/- submitted by Ranka Jewellers₹
was accepted by the authorities. Aggrieved thereby, Respondent
Nos. 1 and 2 preferred Revision Application No. 23 of 2014 before
Respondent No. 3 seeking to challenge and set aside the
proceedings initiated by Respondent No. 5. In the said Revision
Application, Respondent Nos. 1 and 2, for the first time, raised a
contention that the jewellery and articles in question were jointly
owned by various family members and that no partition had been
effected, as a result of which the respective shares of the
individuals were not ascertained. The present Petitioner as well as
Respondent No. 5 filed their respective replies opposing the
Revision Application and controverted the contentions raised
therein.
6.Respondent No. 3, upon hearing the parties and considering
the material placed on record, by Judgment and Order dated 17
July 2014, allowed the Revision Application and set aside the
intimation dated 31 December 2013 as well as the auction
conducted on 03 January 2014. Respondent No. 3 further directed
that the auctioned articles be restored upon refund of the auction
consideration and that Respondent No. 5 shall undertake recovery
proceedings strictly in accordance with Section 156 of the Act and
Rule 107 of the applicable Rules. Being aggrieved by the said
Judgment and Order dated 17 July 2014, the Petitioner has
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preferred the present Petition.
7.Ms. Palav, learned Advocate appearing for the Petitioner,
submits that Respondent No. 3 has erred in failing to appreciate
that the requirement prescribed under Rule 107(5)(i) of the
relevant Rules stood duly complied with. It is contended that the
period commencing from 04 September 2013, being the date of
publication of the auction notice by Respondent No. 5, until 03
January 2014, being the date on which the auction was conducted,
aggregates to 121 days, which substantially exceeds the minimum
statutory requirement of 15 days.
8.It is further submitted that Respondent Nos. 1 and 2 have
suppressed material and relevant facts before Respondent No. 3. In
this regard, it is pointed out that Respondent No. 1, by his
communication dated 5 September 2013, had expressly requested
Respondent No. 5 to defer the auction proceedings for a period of
two months and had assured that he would deposit an amount
equivalent to the value of the ornaments attached from the
lockers. It is further submitted that Respondent No. 1 had
unequivocally undertaken that in the event of failure to fulfil the
said assurance, Respondent No. 5 would be at liberty to proceed
with the recovery proceedings in accordance with law. According
to the Petitioner, these material facts were deliberately withheld at
the time of instituting Revision Application No. 23 of 2014.
9.The learned Advocate for the Petitioner further submits that
Respondent No. 3 has failed to consider the statutory mandate
contained in Section 154(2A) of the said Act, which requires the
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applicant to deposit 50% of the amount due and payable at the
time of filing a Revision Application. It is submitted that this
requirement stands reinforced by the Circular dated 21 September
2011 issued by Respondent No. 6. It is, therefore, contended that
in the absence of compliance with the said mandatory
requirement, the Revision Application ought not to have been
entertained.
10.It is further submitted that the ornaments which were put to
auction have already been delivered to the auction purchaser,
namely M/s Ranka Jewellers, who has paid the entire
consideration and has taken possession thereof. It is contended
that in the absence of impleadment of the said auction purchaser
as a party to the proceedings, no effective or binding adjudication
could have been undertaken, and any order passed in such absence
would be contrary to the principles of natural justice.
11.The learned Advocate for the Petitioner further submits that
Respondent No. 3 has failed to appreciate that the Recovery Officer
is vested with discretion to adjourn the sale for reasons to be
recorded, even for a period exceeding seven days, and thereafter
to proceed with the auction without issuance of a fresh
proclamation under Rule 107(5)(j), particularly where such
adjournment is effected with the consent of the parties and
accompanied by an express waiver of the requirement of fresh
proclamation. It is submitted that in the present case, the
adjournment of the auction was granted at the instance of
Respondent Nos. 1 and 2 and with their full knowledge and
consent.
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12.In the aforesaid premises, it is prayed on behalf of the
Petitioner that this Court be pleased to set aside the impugned
Judgment and Order dated 17 July 2014 and to grant such further
and consequential reliefs as may be deemed just and proper in the
facts and circumstances of the case.
13.Mr. Anturkar, learned Senior Advocate appearing on behalf
of Respondent No. 1, invited attention to the communication dated
31 December 2013, whereby Respondent No. 1 was called upon to
remain present at the office of the Petitioner Bank for handing over
the keys of the lockers. It is submitted that the said communication
constitutes an “order” within the meaning of Section 154 of the
Maharashtra Cooperative Societies Act, 1960, and is therefore
amenable to revisional jurisdiction. It is further submitted that
Section 154 is couched in wide terms so as to include within its
ambit a “decision”, “order” as well as “proceedings”.
14.Inviting attention to the impugned order, the learned Senior
Advocate submits that the Revisional Authority has rightly
recorded findings of non-compliance with mandatory statutory
requirements, including attachment of property in excess of what
was necessary for recovery, failure to consider the objections raised
by Respondent No. 1, absence of specification of upset price in the
auction notice, non-adherence to the mandatory period of 15 days
for issuance of proclamation, and issuance of notice merely three
days prior to the auction. It is submitted that these aspects have
been duly considered while allowing the Revision Application.
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15.The learned Senior Advocate further relies upon the
judgment of this Court in
Janakalyan Sahakari Bank Limited v.
State of Maharashtra & Ors.
(Writ Petition No. 5354 of 2025,
decided on 15 October 2025), wherein, placing reliance upon the
judgment of the Supreme Court in
Bhartiya Seva Samaj Trust v.
Yogeshbhai Ambalal Patel
, (2012) 9 SCC 310, it has been held that
even if an order passed by the Revisional Authority is found to be
erroneous, this Court, in exercise of jurisdiction under Article 226
of the Constitution of India, may decline to interfere where such
interference would result in revival of an illegality. It is submitted
that the findings recorded by the Revisional Authority clearly
demonstrate that the auction proceedings were vitiated on
multiple counts, and therefore, interference by this Court would
have the effect of reviving such illegality. On these grounds,
dismissal of the Petition is sought.
16.Per contra, Mr. Bora, learned Advocate appearing for
Respondent No. 7, submits that the auction purchaser was not
impleaded as a party to the Revision Application, despite
Respondent No. 1 being fully aware of the fact that the said
purchaser had participated in the auction, had purchased the
auctioned goods, and had taken possession thereof. It is submitted
that such non-impleadment constitutes a fundamental defect
which goes to the root of the matter and is not curable at a
subsequent stage.
17.Ms. Shelke, learned Advocate appearing for Respondent No.
5, invited attention to the proceedings undertaken by the Special
Recovery Officer and submitted that due and strict compliance
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with Rule 107(5) of the Maharashtra Cooperative Societies Rules,
1961, has been effected. It is submitted that the auction came to
be postponed solely on account of the request made by Respondent
No. 1 seeking time to deposit the outstanding amount. It is
therefore contended that, in view of the second proviso to Rule
107(5)(j), such postponement must be construed as having been
effected with the consent of Respondent No. 1, thereby dispensing
with the requirement of issuance of a fresh proclamation. On this
basis, it is submitted that the present Petition is devoid of merit
and is liable to be dismissed.
REASONS AND ANALYSIS:
18.Heard the learned counsel appearing for all the parties. The
present Petition is filed under Article 227 of the Constitution of
India, and it arises from the order passed by the Revisional
Authority in Revision Application No. 23 of 2014.
19.Mr. Anturkar, learned Senior Advocate, has submitted that
the communication dated 31 December 2013 must be treated as
an “order” within the meaning of Section 154 of the Maharashtra
Co-operative Societies Act, 1960, and therefore, a revision against
such communication is maintainable. He has further argued that
the language of Section 154 is wide and takes within its fold not
only a “decision” or an “order” but also “proceedings”.
20.It is true that Section 154 uses expressions of broad
amplitude. The words “decision”, “order” and “proceedings” are
not narrowly defined, and on plain reading, they may appear to
confer wide revisional powers. However, it is well settled that such
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expressions cannot be read in isolation. Their meaning must be
gathered from the context of the statute and the nature of the
power being exercised. When the communication dated 31
December 2013 is examined in this light, it becomes evident that it
is essentially an intimation fixing the date and time for auction and
calling upon the parties to remain present. It does not decide any
dispute. It does not adjudicate upon rights of parties. It does not
determine liability or alter legal position of the parties. It is a step
in furtherance of the recovery proceedings already initiated
pursuant to the recovery certificate. Such a communication is more
in the nature of a procedural act rather than a substantive “order”.
21.The distinction between a procedural step and an
adjudicatory order is of importance. An “order” within the
meaning of Section 154 must have some element of decision-
making. It must affect rights or obligations. It must be capable of
being tested on the parameters of legality. A mere intimation or
notice which advances the process forward, without deciding
anything, does not satisfy this test. If every such step is treated as
an order, then each stage of execution would become open to
revision, which is not the intention of the statute.
22.The reliance placed on the wide wording of Section 154 also
cannot carry the matter further. Even though the section refers to
“proceedings”, the revisional authority is ultimately empowered
only to modify, annul or reverse a “decision” or an “order”. The
reference to “proceedings” is for the limited purpose of examining
their regularity. It does not enlarge the jurisdiction to permit
challenge to every procedural act. This position has been clarified
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in judicial precedents, which hold that revisional power must
remain confined to its proper boundaries. Therefore, I am unable
to accept that the communication dated 31 December 2013
constitutes an “order” amenable to revision. It is only a
consequential step in execution of the recovery certificate.
23.The judgment in Rajesh B. Yemkanmardi v. Praful J. Padiya,
2020 SCC OnLine Bom 701 also gives guidance on the issue of
maintainability of revision filed by respondent no.1 and therefore
needs careful consideration. In that matter, this Court had
examined the scope of revisional jurisdiction under Section 154 of
the Maharashtra Co-operative Societies Act while dealing with
actions taken under Rule 107. The Court made it clear that can be
exercised only when there is a “decision” or an “order” passed in
an enquiry or proceeding by a subordinate officer. The Court
further observed that many acts done in recovery process may look
like orders, but in law they may not have that character. Some
steps are only part of process and not final adjudication. In
particular, it was noticed that when borrower does not use
remedies given under Rule 107 itself, then later stage of
confirmation of sale becomes almost a formality. It does not decide
new rights. It only follows earlier steps. Because of this reason,
such confirmation was held not to be an “order” within Section
154.
24. The Court in Manager, Adarsh Mahila Nagri Sahakari Bank
Ltd.
v. State of Maharashtra, 2012 (2) ALL MR 561; Ramchandra
Sitaram Malik
v. Janata Nagari Sahakari Patsanstha Ltd, (2018) 2
Mah LJ 245; and
Sunil Sitaram Mahajan v. Suryakant Pandurang
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Badave, (2018) 5 Bom CR 100 has consistently held that revision
against confirmation of sale or issuance of sale certificate is not
maintainable. The logic behind this requires careful understanding.
Rule 107 itself provides a complete system. Under sub-rule (13)
and sub-rule (14), the borrower or interested person can raise
objections to the sale at proper stage. That is the stage where
rights can be contested. If that stage is not used, then later it is not
open to challenge the final step by way of revision. If such course
is allowed, then the entire scheme of Rule 107 becomes
meaningless. A party may remain silent at proper stage and later
come in revision. The Court therefore said that such bypass is not
permitted. Revisional power is not meant to reopen whole
recovery process step by step. It is only to correct certain kinds of
orders. This shows clear intention to keep limits on revision.
25.When these principles are applied to the present case, the
position becomes more clear. The challenge before the Revisional
Authority was not against any fresh adjudication where rights were
newly determined. It was against auction notice, postponement,
and final sale of ornaments. All these are steps taken during
execution of recovery certificate. They are connected to each other.
They form one chain. These are not independent orders deciding
disputes. They are consequential actions flowing from recovery
proceedings. Therefore, applying the ratio of the above judgment,
such challenge may not fall within revisional jurisdiction, unless
something like fraud is established. No such material is placed
here. This supports the submission of the Petitioner that the
Revisional Authority has assumed jurisdiction which law does not
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give.
26.The next submission advanced on behalf of the Petitioner,
namely that Respondent Nos. 1 and 2 have suppressed material
facts, in my considered view, carries substance. From the record it
clearly appears that Respondent No. 1 had himself approached the
Recovery Officer by communication dated 05 September 2013 and
had requested that the auction be postponed for a period of two
months. Not only that, he had also given an assurance that he
would deposit an amount equivalent to the value of the ornaments
which were under attachment. This aspect goes to the root of the
sequence of events. It explains why the auction which was
originally fixed did not take place and why the authority refrained
from proceeding further at that stage. It also shows that the
subsequent steps taken by the Recovery Officer were not arbitrary,
but were in continuation of the indulgence already granted at the
request of the defaulter himself. When such a party later
approaches the revisional forum and omits to disclose his own
request for postponement, the entire picture placed before the
authority becomes incomplete. A revisional authority, which is
expected to examine legality and propriety, must have before it
correct facts. Suppression of such a relevant circumstance affects
the fairness of adjudication.
27.So far as the submissions based on Rule 107 are concerned,
they also do not assist the respondents in the manner sought to be
projected. Rule 107(5) lays down a deailed procedure. It requires
issuance of notice, making of proclamation, observance of
minimum period, and thereafter conduct of sale. However, the
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Rule itself provides for certain flexibility. In particular, clause (j)
permits adjournment of sale with reasons, and where such
adjournment is with consent of the defaulter, the requirement of
fresh proclamation can be dispensed with. In the present case, the
material on record indicates that the first auction was deferred at
the instance of Respondent No. 1. Thereafter, when he failed to
comply with his own undertaking, the authority proceeded further
and issued intimation and public notice before conducting the
auction. The Petitioner has pointed out that from the first notice
dated 04 September 2013 till the auction on 03 January 2014, a
period of about 121 days had elapsed. This submission does
indicate that there was no undue haste. On the contrary, sufficient
time was available to the defaulter. The contention that there was
breach of the minimum 15 days requirement does not appear to be
supported by the material placed on record. The argument
proceeds on a narrow reading of isolated steps, without
appreciating the continuity of proceedings.
28.The objection raised on behalf of Respondent No. 7
regarding non-impleadment of the auction purchaser also deserves
serious consideration. Once the auction was conducted and the
property was sold to a third party purchaser, rights in the property
stood transferred, subject of course to the outcome of proceedings.
Any order setting aside such auction would affect the purchaser
directly. In that situation, the purchaser becomes a necessary party
to the proceedings. The failure to implead such a party strikes at
the basis of the adjudicatory process. A person whose rights are
likely to be affected must be given an opportunity of being heard.
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The absence of the auction purchaser indicates that the revisional
proceedings were conducted without bringing on record a
necessary party. This factor shows that the Revisional Authority
dealt with a matter where third party rights had already come into
existence, but without ensuring proper representation of such
party. On this ground also, the impugned order cannot be said to
be sustainable.
29.The submission advanced on behalf of Respondent No. 5 that
the auction was postponed with the consent of Respondent No. 1,
and therefore fresh proclamation was not required, appears to
have a reasonable foundation in the language of Rule 107(5)(j).
The Rule itself contemplates such a situation and provides that
where adjournment is with consent, the requirement of fresh
proclamation may be waived. The material placed on record
indicates that the postponement was indeed at the request of
Respondent No. 1. However, the Revisional Authority does not
appear to have given due consideration to this aspect. The findings
recorded regarding alleged irregularities in the auction process
seem to have been reached without fully appreciating the statutory
scheme and the factual background in which the sale was
conducted.
30.The learned Senior Advocate has further placed reliance
upon the decision in
Janakalyan Sahakari Bank Limited, wherein
this Court, while following the judgment of the Supreme Court in
Bhartiya Seva Samaj Trust, has observed that even if an order
passed by a revisional authority is found to be erroneous, the writ
court may still refuse to interfere if setting aside such order would
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result in revival of an illegality. It is true that the writ court does
not act as a court of appeal and is not bound to correct every error.
The principle laid down in the aforesaid judgments is that the
Court must see the overall consequence. If by setting aside an
erroneous order, the Court ends up restoring a position which is
itself illegal, then such interference may be refused. But this
principle cannot be applied in a mechanical manner. It must
depend on facts of each case. The Court must first identify what is
the alleged illegality which is said to revive. Only thereafter the
Court can decide whether to exercise discretion or not.
31.In the present case, the argument of the respondents is that
if the revisional order is set aside, the auction sale would stand
revived, and according to them, such auction is itself vitiated by
procedural irregularities. However, this submission overlooks one
important aspect. The revisional order itself suffers from a basic
defect of jurisdiction. As already discussed, the revision was not
maintainable. When an authority entertains a proceeding which it
is not competent to entertain, the order passed therein cannot be
allowed to stand merely on the ground that setting it aside may
have some consequence. Jurisdictional error goes to the root.
32.Further, the alleged illegality in the auction proceedings is
not of such nature which can be said to be fundamental on the
face of record. The objections raised relate to procedure under
Rule 107, such as notice and proclamation. These are matters
which could have been agitated at appropriate stage under the
Rules themselves. It is not a case where the sale is shown to be
vitiated by fraud or by total absence of authority. Therefore, it
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cannot be said that setting aside the revisional order would revive
an illegality of such gravity that this Court should refuse to
interfere.
33.It is also necessary to note that the principle relied upon by
the learned Senior Advocate presupposes that the impugned order,
though erroneous, has resulted in a just outcome which the Court
should not disturb. In the present case, however, the outcome itself
is a result of exercise of jurisdiction which was not vested in the
Revisional Authority. The Court cannot, in exercise of discretion,
perpetuate such a situation. Therefore, though the principle laid
down in the aforesaid judgments is well settled, its application to
the present case is not justified. The present case is not one where
interference would revive an established illegality. Rather, it is a
case where non-interference would allow an order passed without
jurisdiction to continue. In such circumstances, this Court would
be justified in exercising its supervisory jurisdiction.
34.In view of the foregoing discussion and reasons recorded
hereinabove, the following order is passed:
(i) The Writ Petition is allowed;
(ii) The impugned Judgment and Order dated 17 July
2014 passed by Respondent No. 3 in Revision Application
No. 23 of 2014 is hereby quashed and set aside;
(iii) The Revision Application No. 23 of 2014 filed by
Respondent Nos. 1 and 2 stands dismissed;
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(iv) Consequently, the auction proceedings conducted on
03 January 2014 pursuant to the recovery certificate stand
restored;
(v) Rule is made absolute in the above terms. There shall
be no order as to costs.
(AMIT BORKAR, J.)
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