C.N. Parashivamurthy, C.M.-This appeal is filed under the provision of Section 105 of the Karnataka Co-operative Societies Act 1959.
2. The brief facts of the case are that the third respondent had raised a loan from the second respondent and as the third respondent did not repay the loan the second respondent raised a dispute under Section 70 of the Act before the first respondent and an award was passed in dispute No. 6/76-77 and the same has been decreed. The decree/award and judgment was an ex-parte award passed for an amount of Rs. 16,029/-. The decree was obtained against the third respondent without the knowledge of the appellant as the appellant purchased the said property by a registered sale deed dated 18-5-1981 for a consideration of Rs. 23,000/-. The appellant has came to know that the property which was purchased by him has been sold on 20-5-1985 by public auction and as the bidder does not remit the amount the sale has been cancelled and re-sale has been fixed as per the notification issued by the Sale Officer fixing the date of public auction as 22-8-1985. Since the appellant has interest in the said sale this appeal was filed as a purchaser through a sale deed and a stay was obtained for conducting the sale of the said property.
3. The grounds are that the aware is not a speaking order. The third respondent played fraud, dis-honestly availed the money from the second respondent which was suppressed and the said property was sold to the appellant by a sale deed. The award was not known to the appellant. The application under Rule 38A of the KCS Rules 1960 is also filed before the Assistant Registrar of CS., to set aside the sale which is marked as Annexure-E and it is prayed that the sale is being conducted without notice to the appellant and the appellant having inherited his right by purchase of the said property which has been filed to be for sale, prayed to set aside the award and judgement in dispute No. 6/76-77 and also to set aside the execution proceedings in CKB No. ARR/452/76-77, dated 23-7-1985.
4. The arguments were limited only on the question of maintainability of this appeal. The appellant filed on application under order 41 Rule 27(a) of the C.P. Code endorsing encumbrance certificate and on endorsement which are also seen on 30-1-86.
5. We have heard the learned counsel for the appellant, the learned counsel for the respondent and the learned State Representative in the matter.
6. The learned counsel for the appellant submitted that the third respondent had obtained a loan and the second respondent raised a dispute against the third respondent when he did not pay the amount due and an award was obtained in 1976. The appellant purchased the property which is now put for sale during the year 1981 by Sale Deed registered before the Sub-Registrar the said property was purchased by the appellant. The sale was conducted by the Sale Officer in May 1985 and as the highest bidder did not comply with the remitting the said amount within the prescribed time the sale has been cancelled and re-sale has been ordered and the sale date was fixed as 22-8-1985, Since the appellant has purchased the property he has a right to file this appeal and he is an interested party and in support of his arguments he cited the decisions noted below:
(1) AIR 1956 Patna 308, (2) AIR 1961 SC 838 &
(3) AIR 1961 SC 849.
The citations were in support of the argument that any person means every person and the person ''interested'' is one who looses his legal right.
4. The learned counsel for the respondents submitted that the respondents raised a loan from respondent No. 2 and when it was not discharged an award was obtained. The appellant has purchased the property in 1981 and the provision of Section 33 of the KCS Act prohibits purchase of property mortgaged to a co-operative society and further provides that even if a sale deed is registered it is a void sale deed. The appellant has no locus-standi in this appeal or in the award and judgment passed as the alleged sale itself took place in 1981; when the award itself was passed in 1976. The citations mentioned above are not relevant to this case. The appellant is not a party in the lower court as the annexure-E submitted by the appellant along with the appeal memo shows that he has already chosen the forum of filing an application for setting aside the sale and he cannot case before this Tribunal also by filing an appeal. He should proceed with only one remedy and not both. When an application is pending before the Asst. Regr., this Tribunal cannot pass another order as parallel remedy is not to be pursued. Hence the appeal may be dismissed as not maintainable, as the sale deed is not only illegal but the appellant is not a party. Further it is submitted that the appellant not being a party to the orders passed in the lower court and the appellant has failed to file an application to prosecute the appeal before this Tribunal besides the award which is being questioned was passed in 1976 and the appeal is filed in 1985 which is barred by time. The appellate has failed to implead the auction-purchaser as a party in this appeal. Viewed from any angle, the appeal is not maitainable as the appellant was not a party at the time of passing the award and even if he has acquired the property by sale deed the sale deed is void and hence the appeal may be dismissed as not maintainable.
5. The learned State Representative submitted that the award was passed on 11-9-1976 and the appellant purchased the property through a sale deed on 18-5-1981. The appellant cannot argue that he had no notice of an award being passed is beyond the scope as the appel- lant as was neither a party nor he had any interest in the said property. He cannot urge for notice in the said award passed in 1976 as respondent-3 had obtained the loan from the respondent No. 2 and the respondent No. 3 had mortgaged the property which is now sold by a registered deed which is at page 6-16 of the records and encumbrence certificate has been obtained from the Sub-Registrar wherein the name of the society appears which is at page 70. The period of covering the encumbrence is from 1-9-1974 to 1-3-1984 and the alleged sale deed stated to have been made on 18-5-1981 has not been shown in the said encumbrence certificate issued by the Sub-Registrar, Ramanagaram.
6. The State Representative further submitted that this Tribunal has decided in Appeal No. 136/1985 on 18-12-85 (Belgaum Camp) holding that in similar circumstances the appeal lias to the Registrar under Section 101(2) and not an appeal before this Tribunal. The sale has already been conducted on 22-8-1985 and the sale proceedings are at page 26-28 of the records and the only requirement is confirmation of sale which is only a formality. He further submitted that in a decided case of this Tribunal holding that the confirmation of sale is only a formality is decided in Appeal No. 81/85, 82/85, 83/85 disposed off on 19-9-1985 (para 8) relaying on the decision of AIR 1967 SC 608 In view of the above the appeal is not maintainable hence it be dismissed as not maintainable.
7. While replying to the points raised by the learned counsel for the respondent 2 and the State Representative the learned counsel for the appellant submitted that Section 33 is not applicable as that provision is only for landed property with reference to tenants. He further submitted that even though Annexure-1 application under Rule 38-A is pending before the Asst. Registrar sale proceedings are pursued and sale is conducted and hence the appellant is aggrieved by the sale proceedings and hence the appeal may be allowed.
8. We have perused the above arguments and the sale proceedings. The appellant is neither a party before the lower court nor he had any interest in the award or the property mortgaged by the respondent No. 3 to respondent No. 2. The so called right of the appellant is during 1981 when he purchased the said house property for a consideration in the office of the Sub Registrar and we have also seen the encumbrence certificate with No. 1938/74-75 obtained for the purpose of disposal of the property by public auction under No. SA 1532/ 83-84 bearing the same description of the property as 1285/925. The name of the society appears in Col. No. 6 as claimed and accordingly the sale date is prescribed end the sale is conducted on 22-8-1985 for a consideration of Rs. 63,600/-.
9. Before we examine the contentions of the appellant we have seen the decisions cited by the appellant.
10.AIR 1961 SC 838: "The expression of any one of the Directors used in Section 76 is ambiguous: in some contexts it meaning ''only one of the Directors, does not matter which one'', but in other contexts, it is Capable of meaning ''even one of the Directors''. Which of these 2 meanings was entitled by the Legislature in any particular statutory phrase has to be decided by the Courts on a considera- tion of the context in which the words appear, and in particular, the scheme and object of the legislation (Para 34).
The words ''any one of the Directors'' used in Section 76 must therefore be hold to meaning ''every one of the Directors''"
11AIR 1956 Patna 308: While interpreting Section 53(a) of the Transfer of Properties Act, the Patna High Court held as follows:
"The expression ''any person claiming under him'' means only the person who has derived any interest from or through transferer viz., assignee or the legal representative of the transferer where the plaintiff have not acquired any interest in the land from or through the transferer, but rather in spite of him and they remain in possession without title adversely to the lesser only their title become perfect they cannot be said persons claiming under the lesser (para 7).
Above 2 decisions cited by the appellant could not come to the help of the appellant.
12. The State Representative cited a reported decision in AIR 1967 SC 608 which has been cited by this Tribunal, in Appeal Nos. 81/85, 82/85, 83/85 disposed off on 19-9-1985 holding that the confirmation of the sale is only a formality. The case reported above is a case wherein a sale was conducted for satisfaction of a money decree on the failure of the judgement debtor not filing an application for setting aside the sale but applying for setting aside the decree. The decree was later reversed and the auction-purchaser filed an application for confirmation of sale and the Supreme Court held that the sale must be confirmed notwithstanding reversal of the decree after sale. The title of the purchaser related to the date of sale and not to that of this confirmation.
13. We are required to answer a simple question whether the appellant had any locus-standi in questioning the award and judgement and the sale proceedings. The appellant could not have been a party before the lower court as he had interest at the time of respondent No. 2 initiating action against respondent No. 3. The sale deed between the appellant and the respondent No. 3 is dated 18-5-1981 whereas the award was passed on 11-8-76 and in the said award the schedule property was notified Section 33 of the KCS Act also prohibits sale of the mortgaged property being void without discharging the loan liability as first charge lies to the co-operative society. The scheduled property is mortgaged as per the registered deed before the Sub-Registrar and the respondent No. 2 has not committed any illegality or irregularity nor the respondent No. 1 and 4 in disposing of the said property. The appellant has no locus-standi as neither he had interest in the original award being passed or the property mortgaged to the respondent No. 2 society by the respondent No. 3 at the time of passing the award. If the appellant is aggrieved he has to pursue his application before the Asst. Regr., as per Annexure-E and not before this Tribunal.
ORDER
In the result, we dispose of this appeal as not maintainable. The appellant to pay Rs. 100/- as costs to respondent No. 2 and on failure to do so, the amount may be recovered by the respondent No. 2 from the appellant as though it is an award.
