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TMI Blog2024 (7) TMI 450X X X X Extracts X X X X X X X X Extracts X X X X ..... ersus M/s Durga Rice & Dall Mills & others and also the order dated 29.04.2005 passed by the Presiding Officer of D.R.T., Lucknow in Appeal No. 01 of 2004 M/s Durga Rice & Dall Mills & others; (ii) ..... (iii) ..... (iv) ..... 3. The factual matrix of the case are that M/s Durga Rice & Dall Mills, i.e., the respondent no. 1, through its Director, had taken loan from the respondent no. 6 - Banaras State Bank Limited (which as subsequently merged with the Bank of Baroad), the limit was enhanced from time to time upto Rs. 12 lacs. In lieu of the loan and the cash credit enhancement facilities, certain documents were executed in favour of the respondent - Bank as well as some properties, i.e., building and land, were mortgaged in its favour. The respondent no. 1 had also executed demand promissory note, a letter of weaver, a letter of continuing security, letter of general lien, a hypothetication (goods) agreement, a letter of lien and set off. Further, an agreement of guarantee in favour of the respondent - Bank was also executed by the respondent no. 3 and the respondent nos. 2, 4 & 5 also deposited with the Bank the title documents of their immovable properties with an intent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich was challenged by the borrowers before the DRT, Lucknow under section 30 of the Act on the ground that the properties sold were not the mortgaged properties and the entire process of attachment, proclamation and auction sale was not only irregularities, but also illegal as the properties had been sold without ascertaining the right title and interest/ownership. A ground was also taken that a will was executed by the grandfather of the borrowers and therefore, the properties could not have been auctioned without settling the ownership of the properties by the competent civil court. The main grounds of auction and confirmation were challenged as the interim order granted by the DART on 23.12.2003 was not adhered to. The aforesaid grounds were seriously disputed by the respondent - Bank as well as the auction purchaser, i.e., the petitioner, in the instant writ petition. The petitioner (auction purchaser) challenged the same as the appeal was not maintainable as the borrowers never raised objection when the attachment and thereafter, proclamation was made from time to time, which was within their knowledge and as such, at the later stage, when the judgement - debtor did not objec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ancellation of sale as evident from the grounds of appeal and the prayer, but the same had been granted, which is illegal. In support of her contention, she has placed reliance on the judgements of the Apex Court in Bharat Amratlal Kothari Vs. Dosukhan Samadkhan Sindhi [AIR 2010 SC 235], Trojan & Company Ltd. Vs. Rm. N.N. Nagappa Chettiar [1953 AIR 235] and Janki Vallabh Vs. Mool Chand [AIR 1974 Raj. 168]. 10. She further submits that a stranger, who purchases at an auction sale, has to be considered as a bona fide purchaser for the value and he should not be allowed to suffer on account of the mistake or irregularities, if any, committed in a court of law. In support of her contention, she has relied upon the judgement of the Apex Court in Mani Lal Vs. Ganga Prasad [AIR 1951 All 932] and Janak Raj's case [AIR 1967 SC 608] as well as the judgement of this Court in Munni Lal Vs. Smt. Sona [AIR 1982 All. 29]. 11. Learned counsel for the petitioner next submits that the petitioner, being a bona fide purchaser, is being harassed despite depositing all the money and thus, not in a position to enjoy the fruits. She further submits that the judgement - debtor availed the credit faci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nk after the auction sale and confirmation is a nullity. After sale and purchase by the auction purchaser after deposit of due money, the Bank cannot unilaterally decide to enter into a compromise, which is not in their capacity. She further submits that the judgement debtor has not challenged the proceedings at appropriate time, nor complied with the statutory provisions of pre-deposit, nor during the pendency of the appeal as referred to above had adhered to the compromise, which shows the conduct of the borrower. Thereafter, now, the Bank had entered into a compromise unilaterally, at a belated stage, which is not permissible. The conduct of the borrower is liable to be taken into consideration, to which he wanted to deceive the bank by somehow or the other. In support of her contention, she has placed reliance on the judgement of the Apex Court in Deendayal Nagari Sahakari Bank Ltd. & Another Vs. Munjaji & Others [2022 LiveLaw (SC) 183]. She prays for allowing the writ petition. 15. Rebutting the said submissions, Shri Anil Tiwari, learned Senior Advocate, appearing on behalf of respondent nos. 1, 2, 4 & 5, submits that the entire auction proceedings and the confirmation of sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the learned counsel for the parties, the Court has perused the record. 18. It is admitted that loan was taken, which was enhanced from time to time with a limit of Rs. 12 lacs as on 22.01.1992. It is also not in dispute that in lieu of loan and its enhancement facility, various documents were executed in favour of the respondent - Bank as referred to above. The guarantees were also executed by the respondents - defendants. It is also not in dispute that the property was also mortgaged in favour of the Bank. Due to default in repayment of loan, the Bank proceeded to recover its amount. In the said process, an appeal was preferred before the DRT, Jabalpur, which was decided in favour of the Bank and thereafter, consequent proceedings were initiated for attachment, proclamation, sale and confirmation. In the said process, the judgement - debtor did not object the said proceedings and kept mum. At a later stage, the legal heirs, on the strength of some will executed in their favour, came forward to challenge the sale of immovable property as well as certificate of sale. 19. The record reveals that no relief was sought for setting aside the auction proceedings and sale of properties ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the provisions of the Code of Civil Procedure, 1908, if the plaintiff omits, except with the leave of the court, to sue for any particular relief which he is entitled to get, he will not afterwards be allowed to sue in respect of the portion so omitted or relinquished. Though the provisions of the Code are not made applicable to the proceedings under Article 226 of the Constitution, the general principles made in the Civil Procedure Code will apply even to writ petitions. It is, therefore, incumbent on the petitioner to claim all reliefs he seeks from the court. Normally, the court will grant only those reliefs specifically prayed by the petitioner. Though the court has very vide discretion in granting relief, the court, however, cannot, ignoring and keeping aside the norms and principles governing grant of relief, grant a relief not even prayed for by the petitioner. In Krishna Priya vs. University of Lucknow [(1984) 1 SCC 307], overlooking the rule relating to grant of admission to Postgraduate course in medical college, the High Court in the exercise of powers under Article 226 of the Constitution directed the Medical Council to grant provisional admission to the petitioner. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... smissal of the proceedings. In such a situation, it is the duty of the Court to put the parties in the same position they would have been but for the interim order of the court, unless the order granting interim stay or final order dismissing the proceedings specifies otherwise. On the dismissal of the proceedings or vacation of the interim order, the beneficiary of the interim order shall have to pay interest on the amount withheld or not paid by virtue of the interim order." 24. Further, this Court in the case of Rajendra Kumar (supra) has held that an interim order passed in a case which is ultimately dismissed is to be treated as not having been passed at all. 25. Once the effect and operation of the interim order wipes out on final order being passed thereon, all consequential proceeding goes. This vital aspect of the matter was brought to the notice of the Tribunal, but in stead of taking note of the said fact, the appeal of the petitioner was dismissed on that ground, which cannot be permissible in law. 26. In view of the peculiar facts and circumstances of the case, as referred to herein-above, the judgements cited by the learned counsel for the contesting respondents ar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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