1. Heard Mr. Shashank Shekhar, counsel appearing on behalf of the petitioner.
2. Heard Mr. Amritansh Vats, counsel appearing on behalf of the respondent nos.3 & 4.
3. Heard Mr. Vineet Prakash, counsel appearing on behalf of the respondent no.5.
4. Heard Mr. Rajesh Kumar, counsel appearing on behalf of the respondent-State Bank of India.
5. Heard Mr. Arup Kumar Dey, J.C. to G.P.-I counsel appearing on behalf of the respondent-State.
6. The instant proceedings inter alia arises out of proceedings before District Certificate Officer, Ranchi in Certificate Case No.33/1985-86 and also
Certificate Appeal No.126R15/2001-02 before the learned Deputy Commissioner, Ranchi arising out of the said certificate case.Â
7. This writ petition has been filed by the petitioner for the following reliefs:
(a) For quashing notice dated 07.02.2015 issue by Circle Officer, Namkum, received by the petitioner on 03.03.2015 whereby and whereunder the
petitioner has been directed to vacate the premises by 31st March, 2015.
(b) For quashing order dated 01.03.2013 and 20.01.2014 passed by District Certificate Officer, Ranchi in Certificate Case No.33/1985-86 whereby the
petition filed by the vendor of the petitioner Patras Bando (Respondent No.5) for impleading his as party has been rejected.
(c) For quashing the order dated 22.10.2012 passed in Certificate Appeal No.126R15/2001-02 whereby and whereunder the learned Deputy
Commissioner, Ranchi has allowed the said certificate Appeal and directed the Certificate Holder to vacate the premises within one month.
(d) During pendency of this application, stay of all further proceeding pursuant to the Certificate Appeal No.126R15/2001-02 pursuant to notice dated
07.02.2015.
(e) During pendency of this application, stay of all further proceeding pursuant to the impugned notice dated 07.02.2015.
8. The certificate proceedings involved in this case was initiated at the instance of the Respondent No.1 for recovery of dues from the Respondent
Nos. 3 and 4 and in the certificate proceedings the mortgaged property was sold by public auction to Respondent No. 5 who in turn sold the property
to the petitioner.Â
9. The records of the said Certificate Case No.33/1985-86 was called for by this Court vide order dated 14.03.2018 and all the parties to this writ
petition have gone through the records of Certificate Case No.33/1985-86 which was made available to them for their perusal.Â
10. After hearing the counsel for the parties, after considering the materials on record and after considering the records of the certificate case with
the assistance of the counsels appearing for the parties, this court finds the following facts:-Â Â Â Â
i. M/s. Sinha Surgical & Chemical Manufacturing Company (respondent no.3) through its partner/borrower sought financial assistance from State
Bank of India in which Smt. Anjali Sinharespondent no.4 was one of the guarantors.Â
ii. Respondent No.3 after receiving the loan, defaulted in making payment of the loan amount and in order to recover the dues, the Bank initiated a
Certificate Case bearing Certificate Case No.33/1985-86 against the Respondent nos. 3 and 4. The certificate proceeding was for realization of a sum
of Rs.3, 00,007/-.
iii. Vide order dated 31.07.1996 of the records of the certificate officer, it has been recorded that the details of the property of the certificatedebtors
was filed by the Bank on that day and the Bank had prayed for auction of the property and there was an order passed for publication of auction notice
fixing the date as 09.09.1996.
 iv. The notice for auction was published in news-paper Prabhat Khabar but nobody turned up for auction on 09.09.1996.
v. On 20.08.1998, it has been recorded that as the certificate-debtor has not deposited any amount warrant was directed to be issued fixing the date as
13.10.1998.
vi. However, in the meantime on 14.09.1998 an application was filed by the certificate-debtor depositing an amount of Rs.45000/- in total and after
hearing the certificate-debtor, installment of Rs.7, 500/- was fixed for payment of the balance amount whose first installment was to be deposited on
29.10.1998 and the certificate-debtor was directed to deposit the amount of installment by 29thday of every month. It was also recorded that the
details of the interest will be calculated later and by this order, the execution of the distress warrant was kept in abeyance.Â
vii. Being aggrieved by this order dated 14.09.1998 the borrower (M/s. Sinha Surgical & Chemical Manufacturing Company) filed the writ petition
being C.W.J.C. No.2934 of 1998.
viii. Thereafter, on 30.11.1998 it has been recorded that no further amount has been deposited by the certificate-debtor and accordingly, a direction
was issued for issuance of warrant and there were certain dates given awaiting the service report of the distress warrant. ix. In the meantime, on
28.04.1999 the borrower namely, M/s. Sinha Surgical & Chemical Manufacturing Company withdrew the writ petition in the High Court as this Court
had observed that the installment could be fixed by the Certificate Officer himself.Â
x. On 26.06.1999, order for paper publication for auction of the property was issued fixing the date for auction on 06.09.1999.Â
xi. From the order-sheet it appears that the certificate-debtors did not appear before the Certificate Officer after 14.09.1998 and ultimately on
06.09.1999, the date was fixed for auction in which there were six bidders. However, on 06.09.1999 the date of auction was adjourned to 07.09.1999
by recording that the certificate officer was busy in the matters relating to election.
xii. On 07.09.1999, the auction was held after competitive bidding and the same was confirmed in favour of the highest bidder namely, Patras Bando
(respondent no.5). In this order dated 07.09.1999, the dues as mentioned is Rs.6, 73,697.18. The property was sold for an amount of Rs.26, 000/-.
xiii. On 29.09.1999, objection was filed on behalf of the certificate-debtors.Â
The objection was filed under Section 29 of Bihar and Orissa Public Demand Recovery Act, 1950 wherein it was mentioned that substantial amount
was deposited by the certificate-debtors and details of filing of C.W.J.C. No.2934 of 1998(R) was also mentioned along with the circumstances
under which the writ petition was withdrawn on 28.04.1999. There was specific averment in the said petition that the issuance of sale proclamation
and subsequent sale in auction of the immovable property belonging to the certificate-debtors is bad in law, illegal and against the rules particularly
Rule 26 and 27 of Bihar and Orissa Public Demand Recovery Rules and it was stated that the auction sale in favour of the purchaser is liable to be
set-aside. In the objection petition certificate-debtors further submitted that there has been material irregularities from the beginning of the certificate
proceeding. Further a specific ground was taken that no proclamation for the sale of the immovable property belonging to the certificate debtors was
made near the said property by customary mode nor a copy of the proclamation was fixed on a conspicuous part of the property and then upon a
conspicuous part of the office of the Certificate Officer. It was also mentioned that no copy of the proclamation was ever sent to any of the
certificate-debtors and as such, a proceeding as laid down in Rule 26 of Bihar and Orissa Public Demand and Recovery Rules was not followed.Â
 It was also mentioned in the objection petition filed by the certificate-debtors that before the auction sale no consent of the petitioners was taken
under Rule 27 as laid down under the provisions of Bihar and Orissa Public Demand Recovery Rules. Further, it was specifically stated in the said
petition that the property was worth Rs.7 Lakhs and its value exceeded the amount due against the certificate-debtors, therefore, if the proper auction
was held, the entire liability of the certificate-debtors could have been liquidated by selling only a portion of the property. The auction sale of the
property for such a meagre amount was questioned by the certificate-debtors in the petition dated 29.09.1999.Â
xiv. This objection petition of the certificate debtors was rejected vide order dated 03.12.1999 by the Certificate Officer. By relying upon a judgment
and quoting the relevant portion as follows:
      “Even if there be any material irregularity still the sale cannot be set-aside unless it is shown that the petitioner has sustained
substantial injury…..â€
xv. The specific finding was recorded by the Certificate Officer that the objectors had full knowledge of the proceedings and the progress of the case
and that the auction sale of the property at Tupudana village was ordered as a last resort and the procedure prescribed in the auction sale was
complied with substantially. By recording such findings, the objection petition filed by the certificate debtors was rejected. A direction was issued for
issuance of sale certificate and for delivery of possession.Â
xvi. Thereafter, on 28.01.2000 there was a direction issued by the Certificate Officer for information to the Sub-Registrar, Ranchi as per the
provisions contained in para 39 of Boards Instructions issued under the provisions of Public Demand Recovery Act which deals with attachment and
sale of property. This was done in terms of the provisions of Section 89(4) of Registration Act, 1908. The required stamp paper for Rs.2190/- was
also duly deposited. Then steps were taken for handing over the possession of the property and the notices for the same were issued to the certificate-
debtors and also to the Bank. xvii. It has been recorded in order dated 18.04.2000 that the Circle Officer reported that on the spot there is
certain construction and building is locked and accordingly, request was made for giving direction to open the lock in order to deliver the possession of
the property.
xviii. The Certificate Officer called for a report from the Branch Manager, State Bank of India, Tupudana as to under what circumstances no mention
was made regarding the complete description of the property i.e. boundary wall, standing building, orchard etc. alongwith the schedule of the land to
be auctioned. The matter was posted on 30.05.2000.
xix. Thereafter, the report of the certificate holder-Bank was filed and as mentioned in order dated 20.10.2000, the report was about ignorance of the
constructed portion on the property and it was clarified that the so-called house on the property is in a dilapidated condition without doors and windows
and the boundary wall is also broken at several places and in the opinion of the Bank, the property was not of much value. Accordingly it was
directed to issue instructions to the Circle Officer, Namkum to effect the delivery of possession to the auction purchaser by breaking open the locks of
the building and this direction was duly carried on by the Circle Officer and has been recorded in order dated 02.03.2001 of the certificate officer.
xx. The auction purchaser after the delivery of the possession of the property, duly applied for mutation before the Circle Officer and the property
was mutated in the name of the auction purchaser in the year, 2001 itself and rent receipts were issued. Thereafter, the auction purchaser started
paying rent of the property.Â
xxi. in the meantime, certificate-debtor i.e Nirad Chandra Sinha husband of Anjali Sinha( Respondent no. 4 ) had expired and a statutory appeal
under section 60 of the Bihar and Orissa Public Demand Recovery Act, 1914 against the order dated 03.12.1999 passed by the certificate officer was
filed before the court of Deputy Commissioner,
Ranchi and the same was numbered as Certificate Appeal No.126 R 15/2001-02 along with a petition for condonation of delay under Sector 5 of the
Limitation Act as per the provisions of the Bihar and Orissa Public Demand Recovery Act, 1914.
xxii. There is a provision of filing of appeal under section 60 of the Bihar and Orissa Public Demand Recovery Act, 1914 against the auction sale by
the certificate officer within a period of 15 days only and the appeal in the instant case was filed after expiry of 22 months.
xxiii. Vide order dated 13.07.2002, the appeal was admitted but there is no order condoning the delay in filing the appeal.
xxiv. Before the appellate proceeding, the successful bidder was not made a party respondent.
xxv. Thereafter vide order dated 13.06.2005, the appellate authority observed that the purchaser has not been made party and it was directed that the
purchaser may also be included as one of the parties in the case.
xxvi. The certificate-debtor did not take any steps for inclusion of the name of the purchaser in the appeal and on certain dates, the appellant also did
not even appear before the appellate authority.Â
xxvii. Thereafter, another order dated 27.09.2007 was passed mentioning that the notice be issued to the Manager of the Bank as well as the
purchaser be made party and notice be issued. Inspite of this order, no steps were taken by the certificate-debtor to include the purchaser as a
respondent in the appellate proceeding.
xxviii. Thereafter, on 25.06.2008 again a direction was issued to issue notice to the purchaser and inspite of this order also, no steps were taken by the
certificate-debtor to issue notice to the purchaser and ultimately, the purchaser was never made a party in the proceedings before the appellate
authority.
xxix. On 27.01.2010 it has been recorded in the appellate proceedings that the order dated 25.06.2008 has yet not been complied with and the parties
were directed to comply the order dated 25.06.2008. On 21.07.2010 also, there was again a direction to comply the order dated 25.06.2008.
xxx. Inspite of repeated orders passed by the appellate authority, the purchaser i.e. the successful bidder was not made a party respondent in the
appeal and the specific order dated 25.06.2008 remained un-complied.
xxxi. However, on 04.03.2011 the matter was heard and the order was reserved by the then Deputy Commissioner in the absence of the appellant.
xxxii. On 04.03.2011 after the order was reserved, the then Deputy Commissioner could not pass the order as he was transferred and the successor in
the office i.e. the subsequent Deputy Commissioner has recorded in order dated 05.07.2012 that although the order was reserved by the predecessor,
but the order could not be passed and accordingly, he directed for issuance of notice to the parties fixing the date as 27.01.2012.
xxxiii. Thereafter, from the order-sheet although there is no service report of the notice, which was issued pursuant to the order dated 05.07.2012, but
the Deputy Commissioner, after having recorded the non-appearance of the appellant on 29.08.2012 and 05.10.2012, reserved the order again and on
05.10.2012 on which day nobody appeared on behalf of any of the parties.
xxxiv. Thereafter, the impugned order dated 22.10.2012 has been passed wherein it has been wrongly recorded that the Advocates appearing on
behalf of both the parties and were heard. The Deputy Commissioner, vide the impugned order set-aside the auction sale on the ground that the
property was sold for a meagre amount of Rs.26, 000/- only and as per the appellant, the value of the property was more than Rs.15 Lakhs. The
appellate authority though have mentioned about the delay but the delay was ultimately not condoned.
xxxv. In the meantime, the property was sold by the successful bidder to the petitioner vide registered sale-deed dated 23.02.2007 and thereafter, the
land was mutated in the name of the petitioner and the petitioner has been living in the said property.
xxxvi. The petitioner received the notice from the Certificate Officer pursuant to the order dated 23.10.2012 and thereafter, the petitioner appeared
before the Certificate Officer. Â
xxxvii. On 01.03.2013, the Certificate Officer directed the auction purchaser to appear before him on 16.03.2013 and also directed the issuance of
notice upon the State Bank of India as to why the Bank be not directed to return the sale proceeds alongwith the interest to the auction purchaser.
xxxviii. The successful bidder filed an application dated 17.06.2013 informing that the property has been sold to the present petitioner and the
applications for impleadement of the petitioner in the certificate proceedings filed by the auction purchaser as well as the petitioner was rejected by
the Certificate Officer and those orders dated 1.03.2013 and 20.01.2014 are also under challenge in this writ petition.
xxxix. On 07.02.2015 the notice was issued by the Circle Officer, Namkum directing the petitioner to vacate the premises by 31.03.2015, which was
received on 03.03.2015. The petitioner immediately filed a writ petition before this Court and thereafter, interim orders have been passed in favour of
the petitioner and accordingly, the petitioner is still in possession of the property and residing on the same.Â
11. The counsel for the petitioner has assailed the impugned action and the orders on the following grounds:
a. The Respondent Nos. 3 and 4 are defaulters of the respondent bank and inspite of repeated opportunities given by the Certificate officer, the
Respondent Nos. 3 and 4 did not clear the dues of the bank which ultimately led to auction sale of the mortgaged property in favour of Respondent
No. 5 who after confirmation of sale and mutation sold the property to the petitioner and by the impugned order passed by the Respondent No. 6 in the
appellate proceedings the auction sale has been set-aside in which neither the Respondent No. 5 nor the petitioner was made party in the appeal which
was filed by the Respondent No. 4. Accordingly the impugned order passed by the Respondent No. 6 cannot be sustained on the simple point that no
auction sale can be set aside in absence of the successful bidder.
b. Inspite of giving several opportunities to the respondent No. 4 vide order dated 23.06.2005, 27.09.2007, 25.06.2008, 27.01.2010 and 21.07.2010
by the appellate authority (Respondent No. 6) , the Respondent No. 3 did not take any steps to array the petitioner or the successful bidder
(Respondent No. 5 ) as party respondent in the Certificate Appeal No.126R15/2001-02 and accordingly, as the petitioner as well as the Respondent
No. 5 were not impleaded as a party respondent before the appellate authority, the appellate order is not binding upon the petitioner or the
Respondent No. 5 and accordingly the consequent orders passed by the Circle Officer, Namkum and District Certificate Officer, Ranchi are non-
est in the eyes of law.
c. He further submits that order was reserved by the earlier Deputy Commissioner and upon his transfer no opportunity of hearing was ever granted
by the successor Deputy Commissioner to the persons who were parties before the appellate authority to place their respective cases and as
such the order has been passed on the basis of materials available on record and behind their back and while passing the impugned appellate order, the
successor Deputy Commissioner has not gone through the earlier order-sheet whereby the appellant (Respondent No. 4 herein) was directed to make
the successful bidder as party respondent in the case.Â
d. He further submits that otherwise also the appellate authority has passed the impugned order without condoning the delay in filing the appeal and no
order on merit could have been passed without condoning the delay in filing the appeal.
e. He also submits that had the successful bidder or the petitioner were made party to the appellate proceeding, they could also have responded to the
petition for condonation of delay and they could also have opposed the petition for condonation of delay and would have brought to the notice of the
appellate authority about the various developments which had taken place prior to filing of the appeal and also subsequent to filing of the appeal.Â
f. He also submits that the Deputy Commissioner, being a quasi-judicial officer under the provisions of Bihar and Orissa Public Demand Recovery
Act, 1914 and as per the provisions of the said Act he has no power to condone the delay in filing the appeal and accordingly, the appeal which was
filed ought to have been dismissed either for non-prosecution or on account of being barred by limitation.
g. He further submits that the sale stood concluded by issuance of sale certificate dated 28.01.2000 as it does not require registration in view of
Section 17(2)(xii) of the Registration Act and the Certificate Officer is simply required to inform the registering authority and the requisite stamp is
duly deposited to the Certificate Officer.
h. He also submits that as the sale certificate was issued, the sale was concluded, the registering authority was duly informed about the issuance of
sale certificate, the land was mutated in the name of the successful bidder, therefore otherwise also, the appellate authority could not have set-aside
the auction sale because that would amount to setting-aside the concluded sale and the same can only be annulled by a competent court of civil
jurisdiction. The authority became functus-officio once the sale certificate was duly registered as per the provisions of the said two Acts.
i. He further submits that not only the right was crystalized in favour of the successful bidder, but the registration was complete in his favour as per
the procedure prescribed under the Bihar and Orissa Public Demand Recovery Act, 1914 read with Registration Act, 1908 and thereafter, the
petitioner had purchased the property from the successful bidder in the year, 2007 and accordingly, the setting-aside of the sale would amount to
setting aside of the registered sale-deed executed by the successful bidder in favour of the petitioner, which certainly cannot be done by the authority
under the Bihar and Orissa Public Demand Recovery Act, 1914.
j. In view of the aforesaid submissions the counsel for the petitioner has relied upon the following judgments:
I. 2013(2) JCR 402 (Jhr) to submit that no order on merit can be passed without condoning the delay in filing the appeal.
II. (2013) 10 SCC 765 to submit that delay can be condoned only if the statutory scheme so permits and applying this principle of law the counsel for
the petitioner submits that the appellate authority i.e Respondent No. 6 has no power to condone delay in view of Section 65 of Bihar and Orissa
Public Demand Recovery Act, 1914.
III. (2014) 10 SCC 799 to submit that the liability of guarantor is co-extensive to that of the borrower and it is not necessary to sell the property of the
borrower prior to selling the property of the guarantor.Â
IV. (2007) 5 SCC 745 to submit that the sale certificate issued by court is not required to be separately registered and the compliance under Section
17(2) (xii) of the Registration Act, 1908.
V. (2016) 10 SCC 767 to submit that after the registration is complete, the authorities under the Bihar and Orissa Public Demand Recovery Act,
1914 become functus-officio and the sale certificate as well as the subsequent sale can be set-aside only by the competent court of civil jurisdiction
under the provisions of Specific Relief Act.Â
12. Counsel for the Respondent no. 3 (the guarantorâ€"mortgagor) submits that from the records of the case, it is apparent that neither there was any
attachment of property nor there was any proclamation of sale nor there was any valuation of the property done by the Certificate Officer prior to
putting the property for auction sale. He submits that the records of the Certificate Officer show that the individual notices for the auction sale of the
property was also not issued to the borrowers and the property was simply directed to be sold through public auction. He submits that from the perusal
of the order-sheet there is no order fixing the reserve price of the property although in the public auction, the minimum bid amount has been mentioned
to be Rs.10,000/-. He submits that under the provisions of Bihar and Orissa Public Demand Recovery Act, 1914 Section 29 enables the borrower to
file their application to setaside the sale of immovable property on the ground of non-service of notice or irregularity within the stipulated time as
mentioned therein and the borrower had filed her objection under the said provision bringing on record the material irregularity which are as follows:
(a)Â There has been no proclamation in connection with the sale.
(b) The property was valued according to the borrower at about Rs. 7 Lakhs.
(c) No notice was issued to the borrower prior to sale and he submits that the aforesaid material irregularity are such that the borrower has been
highly prejudiced by sale of the property only for an amount of Rs.26, 000/-.Â
(d) According to the borrower, the property was valued at more than Rs. 7 lacs at that point of time which was much more than the dues of the Bank
and the same could have been recovered only by selling a portion of the property. The Certificate Officer having sold the property at throw-away
price without following the procedure the borrower had filed their objection under Section 29 of the aforesaid Act but the same was rejected by the
Certificate Officer vide order dated 03.12.1999 without considering the material irregularity in conducting the auction sale of the property including the
irregularity that the valuable property of the borrower was sold at throw-away price. The Respondent no. 3 had a right to file an appeal against the
said order which the Respondent no.3 duly filed alongwith a petition for condonation of delay before the appellate authority. Although there is no
specific order for condonation of delay, but the appeal was admitted and the appellate authority while passing the impugned order has taken note of
the reasons for delay in filing of the appeal.Â
(e) He further submits that the record of the case shows that there is no service report of the notices issues by successor Deputy Commissioner who
ultimately passed the order and before passing the final order had directed for issuance of notice to the parties. Accordingly, there was no occasion
for this Respondent no. 3 to appear before the appellate authority on the date of hearing fixed by the successor Deputy Commissioner. However, he is
unable to explain as to why the various orders which were passed by the appellate authority for impleading the successful bidder as a respondent in
the matter was not duly complied with by the borrower before the appellate authority. He further submits that had the fresh notice been served upon
the borrower, which was directed to be issued by the successor Deputy Commissioner in the appellate proceeding or had the Deputy Commissioner
himself seen the records of the case that the directions for issuance of notice upon the successful purchaser was not carried out, the respondent would
have got one more opportunity to comply the various orders which were passed by the Deputy Commissioner for impleading the successful bidder as
a party respondent in the case.Â
(f) The counsel appearing for the respondent no.3 further submits that it was also the duty of the respondent-Bank to point out to the court of the
Deputy Commissioner that the notices have not been issued to the successful purchaser, but however even the respondentBank did not appear in the
hearing before the successor Deputy Commissioner and accordingly, there was no occasion for the Bank also to point out this fact to the Deputy
Commissioner while passing the impugned order. He submits that merely because the respondent did not take steps for service of notice upon the
successful bidder as well as impleading him as a party respondent, the same cannot be construed as the borrower having abandoned his appeal which
was filed before the appellate authority.
(g) The counsel for the Respondent No. 3Â has also submitted that the entire dues of the Bank and the certificate amount has been paid to the Bank
and if the auction sale is set-aside then under that circumstances the Bank may not have any grievance as nothing would be payable to the Bank.
13. Counsel for the Respondent no. 3 has relied upon the judgments reported in (2012)11 SCC 511 and (2014) 5 SCC 610 which has been followed in
(2014) 5 SCC 660 particularly paragraph nos.25 and 26 of the said judgment. He has also relied upon the judgment reported in (2006) 4 SCC 476.Â
14. Counsel for the successful bidder namely, Patras Bando (Respondent no 5) has also appeared and submits that he has filed specific affidavit
before this Court that the successful bidder had no knowledge about the pending appeal before the appellate authority as no notice was ever served
upon the successful bidder. He submits that as long as the notices are not issued to the successful bidder, by no stretch of imagination it can be said
that the successful bidder had notice or knowledge of the appellate proceeding.Â
15. Counsel for the Bank on the other hand submit that the property has rightly been auction sold and he adopts all the argument advanced by the
counsel for the petitioner.
16. The counsel for the respondent-Bank however, could not dispute the fact that there was neither any attachment nor any proclamation of sale nor
any valuation of the property was made nor individual notices were issued to the borrower prior to auction sale conducted by the certificate officer in
this case. Counsel for the respondent-Bank however, submitted that prior to auction sale of the property repeated opportunities were granted to the
borrower to clear the dues with the Bank and pursuant to the conduct of the borrower, the Bank did not have any confidence that the entire dues will
be recovered without the sale of the property. Counsel for the respondent-Bank also could not dispute the fact that it is also the responsibility of the
Bank to ensure that the property is being sold by following the proper procedure. The records of the case clearly suggest that prior to putting the
property for sale the Bank officers had not visited the property as from the records of the Certificate Officer it has come to light of the Bank that for
the first time they visited the property at the stage of handing over the property. The Bank officer and Certificate Officer said that the house is
standing on the property and it has no value.Â
17. The counsel for the Certificate Officer has nothing to say in the matter and has not made any submission because he was not in a position to
defend the action of the Certificate Officer in as much as there has been neither any attachment nor proclamation of sale nor valuation of property.
He was also not in a position to defend the order dated 03.12.1999 passed by the Certificate Officer pursuant to the petition filed by the borrower
under Section 29 of the Bihar and Orissa Public Demand Recovery Act, 1914 particularly in view of the fact that he was not in a position to say that
as to how the auction sale of the property did not prejudice the borrower.
18. After hearing the counsel for the parties this Court decides the issues raised by the petitioner in the following manner:-Â
a. Point no. 1
Whether the impugned order passed by the Respondent no. 6 can be sustained on the simple point that no auction sale can be set-aside without
making the successful bidder as a party respondent?
 Admittedly in this case the auction sale of the mortgaged property was held on 07.09.1999 by the certificate officer and before the confirmation of
sale a petition was duly filed by the borrower under Section 29 of the Bihar and Orissa Public Demand Recovery Act, 1914 on 29.09.1999 on alleged
ground of material irregularities which was rejected by the certificate officer vide order dated 03.12.1999 against which the borrower filed appeal
before the Respondent no. 6 along with a petition for condonation of delay as the appeal was barred by about 22 months.
 By the impugned final order passed by the appellate authority which has set-aside the auction sale, the right of the successful bidder which
crystalized in his favour by virtue of issuance of sale certificate was certainly affected and consequently the right of the petitioner being the
subsequent purchaser was also affected. Accordingly this Court is of the considered view that the auction sale could not have been setaside by the
appellate authority without making the successful bidder as party respondent.Â
b. Point no. 2Â
Whether the Respondent no. 6 ought to have dismissed the appeal on account of non-prosecution due to non -appearance of the appellant instead of
deciding the case on merits?Â
 From the perusal of the order-sheet of the Deputy Commissioner, Ranchi who is the appellate authority it appears that the order
was reserved by the then Deputy Commissioner on 04.03.2011 and the matter was directed to be listed for orders. However, in the meantime the then
Deputy Commissioner was transferred and the successor Deputy Commissioner vide order dated 05.07.2012 directed for issuance of notice to the
parties and the matter was directed to be posted on 27.07.2012. On 27.07.2012, the Deputy Commissioner did not hold Court. However, there is
neither anything on record to suggest that the notices issued pursuant to the order dated 05.07.2012 were served upon the parties nor the counsels for
the parties have made any submissions that notices issued pursuant to the order dated 05.07.2012 were served upon the parties. Thereafter, on
29.08.2012 also non-appearance of the appellant in the appeal has been recorded, however, there is no service report. On 05.10.2012, it has been
recorded that the appellant of the case has not appeared and the Deputy Commissioner found that the appellant of the case has been absenting from
time to time and ultimately he decided to pass the order on the basis of the materials on record. The ordersheet from 05.07.2012 to 05.10.2012 suggest
that although the notice was issued vide order dated 05.07.2012, but the notices were not served and accordingly, none of the parties appeared before
the Deputy Commissioner for fresh hearing of the appeal .This Court is of the considered view that once the order is reserved and a fresh hearing
is to be done, then the fresh notices of hearing is not only required to be issued, but is also required to be served so that the parties may assist the
court. Â
     If the appellant would have been served the notice pursuant to order dated 05.07.2012, the appellant could have taken steps for
compliance of the earlier orders to implead the successful purchaser as party respondent in the matter. But that opportunity could not be availed by the
appellant before the successor Deputy Commissioner as the notices as mentioned in the order dated 05.07.2012 were never served upon the parties
including the appellant. Moreover, from the order dated 22.10.2012 this Court finds that it has been recorded that a hearing of learned Advocates
appearing on behalf of both the parties was done, to which all the parties before this Court agree that such recording is an error of record and
according to all the parties before this Court, no one had appeared before the successor Deputy Commissioner in the appellate proceedings.Â
     Thus this Court is of the considered view that once the notice for fresh hearing was directed to be issued as per order dated 05.07.2012 ,
the appeal could not have been dismissed for non-prosecution without serving the notice of hearing upon the appellant. This Court is of the further
view that after service of notice of hearing, if the parties do not appear, then it is for the authority to consider as to whether he would consider and
decide the case on merits or dismiss the same for nonprosecution.Â
c. Point no. 3
Whether the appellate authority has the power to condone delay in filing the appeal under the provisions of the Bihar and Orissa Public Demand
Recovery Act, 1914?
Section 29, 60 and 65 of the Bihar and Orissa Public Demand Recovery Act, 1914 reads as under:-
“29. Application to set aside sale of immovable property on ground of non-service of notice or irregularity.-Â
(1) Where immovable property has been sold in execution of a certificate, the certificate-holder, the certificate-debtor or any person whose interests
are affected by the sale, may at any time within sixty days from the date of the sale, apply to the Certificate Officer to set aside the sale on the ground
that notice was not served under Section 7 or on the ground of a material irregularity in the certificate proceedings or in publishing or conducting the
sale:
Provided as follows:-
(a) no sale shall be set aside on the ground of any such material irregularity unless the Certificate Officer is satisfied that the applicant has sustained
substantial injury thereby; and
(b) before the Certificate Officer passes an order setting aside a sale under this section he shall require the certificate-debtor to pay the amount
actually found due from him.Â
(2) Notwithstanding anything contained in sub-section (1) the Certificate Officer may entertain an application made after the expiry of sixty days from
the date of the sale if he is satisfied that there are reasonable grounds for so doing. Â
“60. Appeal.- (1) An appeal from any original order made under this Act shall lie-Â
(a) If the order was made by an Assistant Collector or a Deputy Collector, or by a Certificate Officer not being the Collector,- to the Collector; or
(b) If the order was made by the Collector- to the Commissioner-Â Â Provided that no appeal shall lie from any order setting aside a sale on an
application made under Section 28:
 [Provided further that no appeal against an order passed under Section 10 shall be entertained unless the appellate authority is satisfied that the
appellant has paid forty percent of the amount determined under that section or such amount as the appellant admits to be due from him, whichever is
greater.]
(2) Every such appeal must be presented, in case (a), within fifteen days, or in case (b) within thirty days, from the date of such order.
(3) The Collector may, by order, with the previous sanction of the Commissioner, authorise-Â Â (i) any Sub-divisional Officer; or
 (ii) any officer appointed under clause (3) of Section 3 to perform the functions of a Certificate Officer; to exercise the appellate powers of the
Collector under sub-section (1).
(4) When any officer has been so authorized, the Collector may transfer to him for hearing any appeal referred to in clause (a) of subsection (1),
unless the order appealed against was made by such officer.
(5) Pending the decision of any appeal, execution may be stayed if the appellate authority so directs, but not otherwise.Â
65. Application of the [Limitation Act, 1963].- (1) Sections 6 to 9 of [the Limitation Act, 1963 (Act No. 36 of 1963)] shall not apply to suits, appeals or
applications under this Act.Â
 (2) Except as declared in sub-section (1), or as otherwise provided in this Act, the provisions of the [Limitation Act, 1963], shall apply to all
proceedings under this Act as if a certificate filed hereunder were decree of a Civil Court.â€
 In the instant case admittedly after the auction sale of the property a petition under section 29 of the said Act was filed within the period of sixty
days as prescribed under the Section with a prayer to set-aside the auction sale on the grounds mentioned in the said petition which was rejected by
the certificate officer. Against the order of rejection the period prescribed for filing the appeal has been mentioned in Section 60 which in the instant
case was 15 days from the date of the order. Admittedly, the appeal was not filed within the period of 15 days from the date of the order but was filed
after about 22 months along with a petition for condonation of delay under Section 5 of the Limitation Act, 1963. The contention of the petitioner is
that there is no provision for condonation of delay in filing the appeal under the Bihar and Orissa Public Demand Recovery Act, 1914 and accordingly,
application for condonation of delay itself was not maintainable, and, as the appeal was not filed in time, the right to file appeal had extinguished after
expiry of the statutory period of 15 days from the date of the order passed under Section 29 of the Bihar and Orissa Public Demand Recovery Act,
1914.Â
 This court is not inclined to accept the aforesaid contention of the petitioner in view of Section 65 of Bihar and Orissa Public Demand Recovery
Act, 1914 which specifically provides that Section 6 to 9 of the Limitation Act, 1963 will not apply to suits, appeals or applications under the said Act.
Thus this Court finds that the applicability of said Section 6 to 9 of the Limitation Act, 1963 only have been excluded. Meaning thereby that the
legislature never intended to exclude the applicability of Section 5 or other provisions of Limitation Act, 1963 and there is a clear indication that those
provisions of Limitation Act, 1963Â (except Section 6 to 9) are applicable to the appellate proceedings. In the instant case the petition for condonation
of delay was filed under Section 5 of Limitation Act, 1963 along with the memorandum of appeal before the appellate authority, which in the
considered view of this Court was maintainable.Â
  The petitioner has relied upon the judgment reported in (2013) 10 SCC 765 wherein at para 16 it has been held as under:-
“16. It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the
statute so prescribes. The court has no power to extend the period of limitation on equitable grounds. The statutory provision may cause hardship or
inconvenience to a particular party but the court has no choice but to enforce it giving full effect to the same. The legal maxim dura lex sed lex which
means “the law is hard but it is the lawâ€, stands attracted in such a situation. It has consistently been held that, “inconvenience is not†a
decisive factor to be considered while interpreting a statute. “A result flowing from a statutory provision is never an evil. A court has no power to
ignore that provision to relieve what it considers a distress resulting from its operation.â€
  Upon perusal of this judgment this Court finds that the said judgment does not help the petitioner in any manner. This Court finds that the scheme
of Bihar and Orissa Public Demand Recovery Act, 1914 clearly indicates, as held above, that Section 5 of the Limitation Act, 1963 would be
applicable to the appellate proceedings. This issue is accordingly decided against the petitioner and it is held that the appellate authority under Bihar
and Orissa Public Demand Recovery Act, 1914 has the power to condone delay in filing the appeal under Section 5 of the Limitation Act, 1963.Â
d. Point no. 4Â
Whether, otherwise also, the appellate authority could have passed the impugned order on merits without condoning the delay in filing the appeal?
On this point the counsel for the petitioner has relied upon the judgment passed in the case reported in 2013(2) JCR 402 (Jhr) wherein it has been held
that it is a settled position that the appellate court cannot decide the appeal on merits without condoning the delay in filing the appeal if it is filed after
the period of limitation.Â
 From the facts mentioned above, this Court finds that the appeal was admitted without condoning the delay and while passing the impugned order
the appellate authority has recorded the reasons for delay in filing the appeal but has not passed any specific order condoning the delay in filing the
appeal. This Court is of the considered view that once the period of limitation expires, right crystalizes in favour of the other party and the issue of
limitation assumes importance particularly when the persons pursuant to the order impugned alter their position. This Court is of the view that
condonation of delay in filing the appeal is not a mere formality and not even one day’s delay can be condoned without issuing notice to the
opposite party of the case. There being no specific order condoning the delay in filing of the appeal in the impugned proceedings of the appellate
authority, this Court fully agrees with the argument canvassed by the counsel for the petitioner that the appellate authority could not have decided the
appeal on merits without condoning the delay in filing the appeal. This point is accordingly decided in favour of the petitioner.   In this view of
the matter, this Court is of the view that the matter is required to be remitted back to the appellate authority for fresh consideration on the point of
condonation of delay and if delay is condoned for further consideration on the merits of the matter after hearing the parties.    Â
e. Point no. 5Â
Whether non-impleadment of the successful bidder in the appellate proceeding has caused serious prejudice to the petitioner being the subsequent
purchaser of the property?Â
Admittedly the auction of the property was held on 07.09.1999; petition under Section 29 of the Act was filed on 29.09.1999 which was rejected
on 03.12.1999 and appeal was filed allegedly after 22 months being appeal no 126 R 15/2001-02 with a petition for condonation of delay. During the
pendency of appeal the property was sold by the auction purchaser to the petitioner vide registered sale deed dated 23.02.2007. This Court is of the
considered view that setting aside of the auction sale has a direct bearing on the right, title and interest of the successful bidder as well as the
subsequent purchaser and they should also be heard by the appellate authority upon remand.Â
f. Point no. 6
Whether the sale which stood concluded by issuance of sale certificate dated 28.01.2000 in view of Section 17(2)(xii) of the Registration Act could
have been set-aside by the appellate authority?Â
The counsel for the petitioner has submitted that the sale certificate was issued, the sale was concluded, the registering authority was duly informed
about the issuance of sale certificate as per the provisions of the Registration Act, 1908, the land was mutated in the name of the successful bidder,
therefore, the appellate authority could not have set-aside the auction sale because that would amount to setting-aside the concluded sale and the
same can only be annulled by a competent court of civil jurisdiction. The counsel has also submitted that the authority became functus-officio once the
sale certificate was duly registered as per the provisions of the said two Acts.
 This Court is of the considered view that once the sale is concluded, sale certificate issued and is registered as per the provision of the Registration
Act, 1908, the certificate officer does not have the jurisdiction to set- aside the sale as the certificate officer becomes functus-officio.
 However in the instant case the auction sale has been set-aside by the appellate authority and not by the certificate officer. As the law permits
filing of appeal in connection with auction sale of the property and the order passed by the certificate officer under section 29 of the aforesaid Act the
appellate authority has jurisdiction and duty to consider the appeal even if the sale is concluded and sale certificate is duly registered as per the
provisions of the Registration Act, 1908. The legality and validity of the auction sale has to be examined by the appellate authority and the appellate
authority has the exclusive jurisdiction to examine the same. If the appellate authority finds that the auction has not been conducted in accordance with
law the auction sale will be set-aside and the consequences will follow. In this view of the matter the judgment cited by the petitioner reported in
(2016) 10 SCC 767 does not apply to the facts and circumstances of this case. The subject matter before the appellate authority is the legality and
validity of the auction sale and not the execution of the registered sale deed.  Â
g. Point no. 7Â
Whether setting aside of the auction sale has the impact of setting aside of the subsequent sale also made in favour of the petitioner by registered deed
in the year 2007 which according to the petitioner can be set-aside or annulled only by a competent court of civil jurisdiction?
This court is of the considered view that the appellate authority has to confine itself to the legality and validity of the auction sale and legality and
validity of the order and directions passed under section 29 of Bihar and Orissa Public Demand Recovery Act, 1914 and if the same is decided in
favour of the appellant the appellant will still have to take steps to annul all the subsequent acts.Â
19. In view of the aforesaid finding, this Court is inclined to remand the matter to the appellate authority for decision on the limitation petition after
hearing the appellant, respondent Bank, Successful bidder as well as the petitioner being the subsequent purchaser. If the delay is condoned, the
appellate authority has to proceed for decision of the case on the merits of the matter. This view is being taken in the facts and circumstances of this
case particularly in view of the fact that although petition for condonation of delay was filed but no order was passed condoning the delay and the
appeal was decided on merits in favour of the appellant of the case.Â
20. In view of the aforesaid facts and circumstances of this case and after hearing the counsel for the parties, this Court is inclined to set-aside the
order dated 22.10.2012 passed by the Deputy Commissioner, Ranchi in Certificate Appeal No.126R15/2001-02 as well as the consequential order
dated 01.03.2013 and 20.01.2014 passed by the District Certificate Officer, Ranchi in Certificate Case No.33/1985-86 and also set-aside the order
dated 07.02.2015 issued by the Circle Officer, Namkum whereby the petitioner was directed to vacate the premises by 31st March, 2015.
21. The matter is remitted back to The Deputy Commissioner, Ranchi to hear the matter afresh. It is further directed that the petitioner herein and
the auction purchaser ( Respondent No. 5) be added as a party respondent in the Certificate Appeal No.126R15/2001-02 and the appellate court
i.e. the court of Deputy Commissioner, Ranchi will pass a fresh order after hearing the parties .Â
22. The office of the Deputy Commissioner is directed to implead the petitioner herein as well as the successful bidder appearing herein, whose details
are as follows, as the party respondents in the Appeal.Â
1. Smt. Basanti Munda, Wife of Munna Munda, Resident of Dungri, P.O. Hatia, P.S. Tupudana and District- Ranchi
2. Patras Bando, Son of Francis Bando, Resident of Kalyanpur, P.O. Hatia, P.S. Jagarnathpur, District- Ranchi
23. All the parties herein agree to appear before the Deputy Commissioner, Ranchi on 25.06.2018.
24. It will be open to the petitioner as well as the Bank and the auction purchaser to file the reply to the petition for condonation of delay filed by the
appellant before the Deputy Commissioner, Ranchi .
25. The Deputy Commissioner, Ranchi is directed to first decide the petition for condonation of delay and if upon hearing the parties he finds thatÂ
the delay in filing the appeal is fit to be condoned , then he may condone the delay and proceed to decide the appeal on merits after considering
the materials including the records of the District Certificate Officer, Ranchi in Certificate Case No.33/1985-86. If delay in filing the appeal is not
found fit to be condoned then appropriate order be passed and there would be no requirement of deciding the appeal on its merits.
26. The Deputy Commissioner is directed to pronounce the final order without being prejudiced to the observations made by this Court within a
period of six months from the date of receipt of a copy of this order. Â
27. The record from the District Certificate Officer, Ranchi being Certificate Case No.33/1985-86 which has been received and is kept with the
records of this case, should be immediately sent back to the District Certificate Officer, Ranchi.Â
28. In view of the final order passed in the writ petition, no order need by passed in the pending I.A. No. 4050 of 2015 which had been filed.Â
29. The writ petition is allowed with the aforesaid directions and observations.    Â
