tion Criminal No 307 of 1988
Under Article 32 of the Constitution of India Ram Jethmalani UR Lalit Ms Kamini Jaiswal and Arvind Nigam for the Petitioner
TU Mehta Dushiant Dave MN Shroff and Mrs section Dikshit for the Respondents
The Judgment of the Court was delivered by RAY J
The petitioner who is the brother of detenu Adbul Latif Abdul Wahab Sheikh of Ahmedabad has challenged in this writ petition the order of detention dated May 23 1988 passed by the respondent No 1 the Commissioner of Police Ahmedabad City Gujarat issued under Section 32 of the Gujarat Prevention of AntiSocial Activities Act 1985 and served on the detenu while the detenu was in custody at Sabarmati Central Prison under a judicial order of remand made by the Designated Court Ahmedabad in respect of CR No 40 of 1987 on the grounds inter alia that there has been absolute non application of mind on the part of the detaining authority 895 in clamping the order of detention and also on other grounds
In order to decide the various contentions raised in this writ petition it is necessary to consider the back ground as well as the various orders of detention passed against the detenu by the detaining authority the respond ent No 1
On September 11 1984 the detenu was served with a show cause notice under Section 59 of the Bombay Police Act 1951 calling upon him to show cause as to why he should not be externed from the limits of Ahmedabad City Police Commissioner s jurisdiction and its surrounding areas as also from the rural areas of Gandhinagar Kheda and Mehsana District limits for the activities of February 1983
In 1985 the detenu was arrested for alleged offences under Sections 307 143 147 148 149 and 324 of Indian Penal Code in CR No 37 of 1985
On February 14 1985 the detenu was granted bail in the said case by the Sessions Court Ahmedabad
On March 18 1985 communal riots broke out in Ahmedabad city and on March 24 1985 an order of detention under the National Security Act was passed against the detenu by the respondent No 1
During the communal riots one Police Sub Inspector Mr Rana was killed in Kalupur PSFIR was lodged against the detenu and six other accused on May 9 1985
In the FIR the detenu was named as accused No 2
On July 6 1985 charge sheet was submitted in CR No 37 of 1985
On September 27 1985 enquiry was completed in externment proceedings and arguments were heard
On November 12 1985 the detenu surrendered to police and he was arrested and taken into custody
In the said case accused Nos 6 and 7 were discharged the detenu along with accused No 4 was tried in the said charge by the Principal Judge Sessions Court who by his Judgment dated May 26 1986 acquitted the detenu and the co accused after recording of the evidence of witnesses and considering the same
The detenu was however enlarged on bail by the Magistrate in the said case vide his order dated June 23 1986 as no case was made out against the detenu under Sec tion 307 IPC and the offence if any was only under Section 324 IPC
The detenu was released from jail on June 23 1986 and immediately as he came out an order of deten tion under the Prevention of Anti Social Activities Act PASA was served on the detenu there and then and he Was once again taken into custody
It is relevant to mention in this connection that on January 18 1986 the order of ex ternment of the detenu from Ahmedabad City and rural areas of Gandhinagar etc was made while he was in custody
The detenu preferred an appeal against the externment order which was heard by the Deputy Secretary Home
The State Government confirmed the order of externment on June 23 1986
On August 7 1986 896 the State Government revoked the order of detention dated June 23 1986 on the ground that no Advisory Board was constituted
On the same day however the State Government passed the second order of detention under PASA and the same was served on the detenu on the same day
The detenu filed a Special Criminal Application No 862 of 1986 challenging the externment order dated January 18 1986 and its confirmation order dated June 23 1986 before the High Court of Gujarat
The detenu also filed another Special Criminal Application No 889 of 1986 before the High Court challenging the second order of detention dated August 7 1986
The Special Crimi nal Application No 889 of 1986 was dismissed by the High Court on October 21 1986
Against this judgment the detenu filed a Special Leave Petition Crl No 3762 of 1986 before this Court and the said Petition was finally heard in part on January 23 1987 and it was adjourned to February 3 1987
This Court released the detenu on parole only on January 23 1987 for the reason that the detenu was required to be in Ahmedabad because the Corporation elections were to take place on January 25 1987
Unfortunately the mother of the detenu expired on January 23 1987 but in spite of the order of parole made by this Court the State Government permitted the detenu to attend his mother s funeral by granting him parole for only four hours and after the funer al the detenu was again taken into custody
Thereafter the detenu was released on parole on January 24 1987
The elections for the Corporation were held on January 25 1987 and the detenu was declared elected from all the wards from which he had contested
On February 3 1987 the appeal of the detenu was heard finally by this Court and this Court extended the parole granted to him till the judgment was delivered in the case
However on February 3 1987 in spite of the orders of parole the detenu was kept in custody and was released only on the next day ie February 4 1987
This Court by its judgment dated February 9 1987 quashed the detention order and directed the respondents to set the detenu at liberty forthwith
The detenu in terms of his earlier bail orders was required to be present before Kalupur PS every morning at 11 am and he continued to do so from February 9 to Febru ary 14 1987
On February 14 1987 when the detenu reported at Kalupur PS along with his Advocate to record his presence he was asked to wait there
At about 1230 pm he was informed that he was taken into custody for breach of orders of externment dated January 18 1986
The FIR against this case was registered and the detenu was produced before the Metropolitan Magistrate at about 130 pm
The Metropol itan Magistrate 897 granted bail to the detenu
At that time the detenu received the news that disturbances had broken out in the city of Ahmedabad and therefore he declined to avail of the bail order and requested the Magistrate to take him into custody
On February 15 1987 the order of detention under Section 8a of the National Security Act was passed against the detenu by the Commissioner of Police Ahmedabad City
The detenu was served with the order which was confirmed by the State Government on February 18 1987
This order of deten tion was challenged by the detenu by a writ petition under Section 32 of the Constitution of India before this Court being Writ Petition Crl No 246 of 1987
This Court issued rule returnable on April 4 1987
Pending disposal of the writ petition the detenu was released on April 3 1987 by the AdviSory Board constituted under the National Securi ty Act
Furthermore to harass the detenu two FIRs being CR Nos 34 and 40 of 1987 were lodged against the detenu in Kalupur PS
On June 22 1987 the detenu on receiving notices of two meetings one of the General Body and the other of Suez Refugee Committee of the Ahmedabad Municipal Corporation to be held on June 26 and June 23 1987 respec tively made an application to the Home Secretary Govern ment of Gujarat seeking permission to visit Ahmedabad for one month
As no reply was received by the detenu the detenu moved Crl
Petition No 1345 of 1987 before the High Court for permission to visit Ahmedabad
the aforesaid Miscellaneous applications were rejected by the High Court
Thereafter the detenu filed Special Leave Petition Crl No 1952 of 1987 before this Court against the impugned order of externment of the detenu for a period of two years with effect from January 18 1986
Notice was issued on the said petition but as the period of externment expired the said petition was finally disposed of by this Court
On October 16 1987 the detenu was arrested by the police for an alleged offence committed by the detenu in respect of the incident of February 14 1987 ie breach of externment order dated January 18 1986
The detenu applied for bail to the Designated Court Ahmedabad but the bail application was rejected vide order dated November 24 1987
The detenu filed an appeal before this Court under Section 16 of the Terrorist and Disruptive Activities Prevention Act 1985
This appeal being Criminal Appeal No 316 of 1988 was dis posed of by this Court on April 27 1988 setting aside the impugned order of the Designated Court rejecting application for bail and remitting the case to the Designated Court for a decision afresh
The Designated Court was also directed to enlarge the applicant on bail on such terms as it deems fit pending disposal of the application 898 for bail on merits
The respondents being afraid that this Court may allow the said Criminal Appeal No 3 16 of 1987 made another order of detention on January 25 1988 and served the order on the detenu on the same day
This deten tion order was made under Section 3 of the Gujarat Preven tion of Anti Social Activities Act 1985
This order of detention was challenged by Criminal Writ Petition No 114 of 1988 before this Court
Rule was issued and the petition was heard on merits
The detention order was withdrawn as the Advisory Board refused to confirm the order of deten tion
The detenu was released on March 14 1988
The detenu accordingly went home
However when Criminal Appeal No 316 of 1988 came up for hearing before this Court on April 7 1988 an allegation was made that detenu had absconded
This Court however ordered on April 7 1988 that the detenu should surrender within a week
In compliance of the said order the detenu surrendered on April 13 1988 and on May 23 1988 the order of detention was made as stated hereinbe fore
It has been stated in the writ petition that in the grounds of detention in support of the present order of detention dated May 23 1988 no act on the part of the detenu is alleged between March 14 1988 and April 13 1988
It has also been stated that it was the only period of less than a month during which the detenu was a free man
After April 13 1988 the detenu has been continuously in custody and prior to March 14 1988 also the detenu was continuously in custody for nearly three years save for short periods during which he was released on parole by this Court
No prejudicial act has been alleged against the detenu during the days when the detenu was out on parole
It has been further stated that no prejudicial activity of any kind is alleged against the detenu after March 14 1988 being the date on which the earlier order of detention stood revoked by virtue of the Advisory Board s decision
The action of respondents is plainly vindictive in total defiance of law and disgraceful blot on any civilised admin istration of justice
It has also been stated that there has been no application of mind at all to the most glaring fact that the Designated Court in defiance of this Court s order did not grant interim bail to the detenu by its order dated May 13 1988
There was no possibility therefore of the detenu being released on bail
It is impossible to justify the statement made in the grounds of detention that there are full possibilities that the detenu may be released on bail in this case
This statement it has been stated is recklessly false
It has also been stated that the entire material which forms the basis of the present order of detention and the grounds of detention was available at the 889 time of the detention order of January 25 1988
The detaining authority the respondent No 1 has filed an affidavit in reply
In para 16 of the said affidavit it has been stated that it is true that the detenu was released by the Advisory Board on April 3 1987 but it is not true to say that two FIRs were lodged against the detenu with a view to harass him
These two FIRs ie
CR Nos 34 and 40 of 1987 were registered against the detenu on February 14 1987 at PS Kalupur ie prior to the order dated April 3 1987 passed by the State Government
CR No 3487 was registered at PS Kalupur against the detenu for breach of externment order while CR No 4087 was registered against the detenu at PS Kalupur for an offence of provocative speech made by the detenu
 In para 32 the respondent No 1 merely denied the aver ments made in para 3III of the petition wherein it was specifically averred that there was no specific material for passing the detention order against the detenu
In para 34 the respondent No 1 has denied the statement that there is no application of mind to the facts of the case stated in the petition
It has also been stated that the statement that there is no material to justify the action taken by the competent authority is not true
It appears from the grounds of detention which was served under section 9 of the said Act that three criminal cases have been mentioned
These are 1
PS Kalupur Us 25ac of Arms pending in Court Case No 37285 Act Sections 4 5 of Explosive Act
PS Kalupur Us 120b of IPC Pending for Case No 45687 Us 251ec of examination Arms Act and Us 1 of the Terrorists Act 1985 3
PS Kalupur Us 307 120b of IPC Pending for Case No 288 Us 31 of Terrorists examination
Act Us 4 5 of Explo sives Act Us 251c 1 of Arms Act and Us 1351 of Bombay Police Act
900 It has also been stated therein that after careful consideration of the facts of the complaint of the aforesaid offences it is apprehended that detenu s criminal activities will adversely affect the public order because the activi ties the weapons kept by the detenu and his associates cannot except create terror in the State of Gujarat
It has been further stated that You are arrested for committing the said offences even though you are released on bail from the Court
At present you are in jail in the case registered in Kalupur Police Station offence register No 4087 and there are full possibilities that you may be released on bail in this offence also
 Out of these cases in respect of Case No 288 which was registered on January 2 1988 the name of the detenu is not mentioned in the FIR In Case No 37285 also which was registered on June 26 1985 the name of the detenu is not in the FIR
The detenu however was arrested on October 17 1987 ie after a lapse of more than two years and three months
In Case No 45687 which was registered on October 16 1987 the detenu was arrested on October 16 1987
This case related to the seizure of a revolver from the person of the detenu who kept the same without any licence in viola tion of the provisions of Arms Act
The detaining authority while issuing the order of detention against the detenu the brother of the petitioner who is already in custody did not at all consider the fact that the Designated Court declined to grant bail to the detenu by its order dated May 13 1988 in Crl
No 511 of 1988
The detaining authority also was not aware that no application for bail on behalf of the detenu was filed between May 13 to May 23 1988 ie the date when the detention order was made
Had this fact been known to the detaining authority the detaining authority could have considered whether in such circumstances he would have been subjectively satisfied on the basis of cogent materials fresh facts and evidences that it was necessary to detain him in order to prevent him from acting in a manner prejudicial to the maintenance of public order
In Rameshwar Shaw vs District Magistrate Burdwan  Anr  the petitioner_was detained by the order of the District Magistrate under the provisions of 
The order recited that the District Magistrate was satisfied that it was necessary to detain the petitioner with a view to prevent him from acting in a manner prejudicial to the maintenance of public order
This 901 order was served on the petitioner while he was in jail custody as
an under trial prisoner in connection with a criminal case pending against him
It was urged on behalf of the petitioner that the detention was not justified under the provisions of Section 31a of the Act and as such it was invalid
It was held that the satisfaction of the de taining authority under section 31a is his subjective satisfaction and as such it is not justiciable
It is not open to the detenu to ask the Court to consider the question as to whether the said satisfaction of the detaining author ity can be justified by the application of objective tests
The reasonableness of the satisfaction of the detaining authority cannot be questioned in a court of law the ade quacy of the material on which the said satisfaction pur ports to rest also cannot be examined by a court of law
It has also been observed that if any of the grounds furnished to the detenu is found to be irrelevant while considering the application of clauses i to iii of Section 31a and in that sense of the Act the satisfaction of the de taining authority on which the order of detention is based is open to challenge and the detention order is liable to be quashed
Similarly if some of the grounds supplied to the detenu are so vague that they would virtually deprive the detenu of his right of making an effective representation that again may introduce a serious infirmity in the order of his detention
It has been further observed that an an abstract proposition of law there may not be any doubt that Section 31a of the Act does not preclude the authority from passing an order of detention against a person whilst he is in detention in jail but in deciding the question as to whether it is necessary to detain a person the detaining authority has to be satisfied that if the said person is not detained he may act in a prejudicial manner and this conclu sion can be reasonably reached by the authority generally in the light of the evidence about the past prejudicial activi ties of the said person
The past conduct or antecedent history of a person can be taken into account in making a detention order but the past conduct or antecedent history of the person on which the authority purports to act should ordinarily be proximate in point of time and would have a rational connection with the conclusion drawn by the authority that the detention of the person after his release is necessary
The detention of a person without a trial is a very serious encroachment on his personal freedom and so at every stage all questions in relation to the said detention must be carefully and solemnly considered
The detaining authority considered the antecedent history and past conduct which was not proximate in point of time to the order of detention and as such the detention order was held to be not justified and so the same was set aside
902 In Alijan Mian vs District Magistrate Dhanbad and Ors etc
 1983 4 SCC 301 detention orders were served on the petitioners in jail
The detaining authority was alive to the fact that the petitioners were in jail custody on the date of the passing of the detention orders as evident from the grounds of detention
It was stated therein that the position would have been entirely different if the petition ers were in jail and had to remain in jail for a pretty long time
In such a situation there could be no apprehension of breach of public order from the petitioners
But the detain ing authority was satisfied that if the petitioners were enlarged on bail of which there was every likelihood it was necessary to prevent them from acting in a manner preju dicial to public order
It was held that the pendency of a criminal prosecution is no bar to an order of preventive detention nor is an order of preventive detention a bar to prosecution
it is for the detaining authority to have the subjective satisfac tion whether in such a case there is sufficient material to place a person under preventive detention in order to pre vent him from acting in a manner prejudicial to public order or the like in future
In Ramesh Yadav vs District Magistrate Etah and Ors the order of detention under section 32 of was made at a time when the petitioner had already been in Mainpur jail as an under trial prisoner in connection with certain pending criminal cases
The grounds of detention were served on the petition er along with the order of detention
The petitioner asked for certain papers with a view to making an effective repre sentation but when the request was rejected the petitioner made a representation
The Board did not accept the peti tioner s plea
The petitioner s detention was confirmed by the State Government
This was challenged in the writ peti tion
Apart from specifying five grounds in the grounds of detention a reference was made to the fact that the detenu creates public terror on account of his criminal activities which are absolutely prejudicial to  the maintenance of public order
It was further mentioned in the detention order that though the petitioner was detained in district jail yet he filed an application for bail in the court of law and the same has been fixed for heating on September 17 1984 and there is a positive apprehension that after having bail he will be out of jail and the detaining authority is convinced that after being released on bail he will indulge in activities prejudicial to the maintenance of public order
It was observed that 903 On a reading of the grounds particularly the paragraph which we have extracted above it is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenu was released on bail he would again carry on his criminal activi ties in the area
If the apprehension of the detaining authority was true the bail appli cation had to be opposed and in case bail was granted challenge against that order in the higher forum had to be raised
Merely on the ground that an accused in detention as an under trial prisoner was likely to get bail an order of detention under the should not ordinarily be passed
 In Suraj Pal Sahu vs State of Maharashtra and Ors  Sabyasachi Mukharji J while agreeing with the views expressed in Ramesh Yadav vs District Magistrate Etah  Ors supra observed that the principle enunciated in the said case would have to be judged and applied in the facts and circumstances of each case
Where a person accused of certain offences whereunder he is undergoing trial or has been acquitted the appeal is pending and in respect of which he may be granted bail may not in all circumstances entitle an authority to direct preventive detention and the principle enunciated by the aforesaid decision must apply but where the offences in respect of which the detenu is accused are so interlinked and continuous in character and are of such nature that these affect continuous maintenance of essential supplies and thereby jeopardize the security of the State then subject to other conditions being fulfilled a man being in detention would not detract from the order being passed for preventive detention
In Vijay Narain Singh vs State of Bihar  Ors  at 459 wherein an order of detention under Section 122 of Bihar Control of Crimes Act 198 1 was served on the petitioner while he was in jail as an under trial pris oner in a criminal case under Section 302 IPC and was allowed to be enlarged on bail by the High Court but not yet enlarged it was held that It is well settled that the law of preventive detention is a hard law and therefore it should be strictly construed  the law of preventive detention should not be used merely to clip the wings of an accused who is in volved in a criminal prosecution
 904 In the case of Raj Kumar Singh vs State or Bihar and Ors  Mukharji J observed that while adequacy or sufficiency is no ground for a challenge rele vancy or proximity is relevant in order to determine whether an order of detention was arrived at irrationally or unrea sonably
It has been further observed that Preventive detention as reiterated is hard law and must be applied with circumspection rationally reasonably and on relevant materi als
Hard and ugly facts make application of harsh laws imperative
The detenu s rights and privileges as a free man should not be unnec essarily curbed
 In Binod Singh vs District Magistrate Dhanbad Bihar and Ors  at 420 21 the petitioner was arrested in connection with the criminal case and he was already in custody
The order of detention dated January 2 1986 under Section 32 of was served on the petitioner in jail
It was observed by the Court that   
There must be awareness of the facts necessitating preventive custody of a person for social defence
If a man is in custody and there is no imminent possibility of his being released the power of preventive detention should not be exercised
A bald statement is merely an ipse dixit of the officer
If there were cogent materials for thinking that the detenu might be released then these should have been made apparent
Eternal vigilance on the part of the authority charged with both law and order and public order is the price which the democracy in this country extracts from the public officials in order to protect the fundamental freedoms of our citizens In Poonam Lata vs
ML Wadhawan  Anr  the court observed that The fact that the detenu is already in deten tion does not take away the jurisdiction of the detaining authority in making an order of preventive detention
What is necessary in such a case is to satisfy the court when detention is challenged on that ground that the detaining authority was aware of the fact that the detenu was already in custody and 905 yet he was subjectively satisfied that his order of detention became necessary
 In Smt
Shashi Aggarwal vs State of UP and Ors
  at 440 the detenu was detained by the District Judge Meerut by an order dated August 3 1987 made under Section 32 of 
The detention order was approved by the State Government on receipt of the opinion of the Advisory Board
It was chal lenged by a writ petition before this Court
The Court observed that In the instant case there was no material made apparent on record that the detenu if released on bail is likely to commit activi ties prejudicial to the maintenance of public order
The detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out
We do not think that the order of detention could be justified on that basis
 On a consideration of the aforesaid decisions the prin ciple that emerges is that there must be awareness in the mind of the detaining authority that the detenu is in custo dy at the time of service of the order of detention on him and cogent relevant materials and fresh facts have been disclosed which necessitate the making of an order of deten tion
In this case the detenu was in jail custody in con nection with a criminal case and the order of detention was served on him in jail
It is also evident that the applica tion for bail filed by the detenu was rejected by the Desig nated Court on 13th May 1988
It is also not disputed that thereafter no application for bail was made for release of the detenu before the order of detention was served on him on 23rd May 1988
It appears that in the grounds of deten tion there is a statement that at present you are in jail yet there are full possibilities that you may be released on bail in this offence also
 This statement clearly shows that the detaining authority was completely unaware of the fact that no application for bail was made on behalf of the detenu for his release before the Designated Court and as such the possibility of his coming out on bail is non exist ent
This fact of non awareness of the detaining authority in our opinion clearly establishes that the subjective satisfaction was not arriveat by the detaining authority on consideration of relevant materials
There is also nothing to show from the grounds of detention nor any fresh facts have been disclosed after the detention order dated January 25 1988 was set aside by the Advis 906 ory Board on March 13 1988 on the basis of which the detaining authority could come to his subjective satisfac tion that the detenu if released on bail will indulge in acts prejudicial to the maintenance of public order and as such an order of detention is imperative
In the grounds of detention three criminal cases have been mentioned
Out of those three criminal cases criminal case No 37285 was lodged on June 26 1985 ie much before the present deten tion order and several orders of detention were made in the meantime
This criminal case is therefore not proximate in time to the making of the order of detention
So it is a stale ground
Another criminal case No 45687 is dated October 16 1987 on the basis of which the previous order of detention was made
This case has nothing to do with the maintenance of public order as it pertains to the recovery of a revolver from the detenu on a search of the person of the detenu without any valid licence under the Arms Act
The third case No 288 is dated January 2 1988
This case was in existence at the time of making of the detention order dated January 25 1988
Moreover the name of the detenu is not in the FIR The statements of some of the associates of the detenu have been annexed to the grounds of detention
These statements do not disclose any activity after 14th March 1988 or any activity of the time when the detenu was a free person
Considering all these facts and circumstances we are constrained to hold that there has been no subjective satisfaction by the detaining authority on a consideration of the relevant materials on the basis of which the impugned order of detention has been clamped on the detenu
It also appears that the detenu was in detention as well as in jail custody for about three years except released on parole for short periods
The only period during which he was a free person was from 14th March 1988 to 13th April 1988
During this period no act prejudicial to the maintenance of public order has been alleged to have been committed by the detenu
It is convenient to mention here that Section 152 of PASA Act says that a detention order may be revoked by State Government but such revoca tion on expiry of detention order will not bar making of a fresh detention order provided where no fresh facts have arisen after expiry or revocation of the earlier detention order made against such person
The maximum period of deten tion in pursuance of subsequent detention order cannot extend beyond twelve months from the date of detention of earlier order
This Court in considering similar provision in Section 132 of in Kshetra Gogoi vs The State of Assam  at 43 held the order of detention as illegal stating that   
Under Section 132 what is required is that fresh 907 facts should have arisen after the expiry of the previous detention
Facts arising during the period of detention are therefore not relevant when applying the provisions of Section 132
 It is highlighted in this connection that in the affida vit in reply filed by the respondent No 1 the detaining authority he merely denied the specific averments made in para 3III that no act prejudicial to the maintenance of law and order on the part of the detenu is alleged to have been committed by the detenu between 14th March to 13th April 1988 etc
without specifically denying those state ments
In this background a mere bald statement that the detenu who is in jail custody is likely to be released on bail and there are full possibilities that he may continue the above offensive activities without reference to any particular case or acts does not show on the face of the order of detention that there has been subjective satisfac tion by the detaining authority in making the order of detention in question
We therefore quash the order of detention and direct the respondents to set the detenu at liberty forthwith
YL Petition allowed


Summary:
Maganlal executed a mortgage in favour of MP State Financial Corporation as security for a loan
The amount of loan not having been paid the Corporation initiated pro ceedings before the District Judge under section 31 of the for attachment and sale of the mortgaged property which was ultimately auc tioned and purchased by Ms Jaiswal Industries the first purchaser Maganlal made an application under Order 21 Rule 90 of the Code of Civil Procedure with the result that the sale was set aside by the Additional District Judge
The first purchaser preferred an appeal against the order set ting aside the sale and also sought stay of further proceed ings for re sale
The High Court did not grant stay but only ordered that the fresh sale shall not be confirmed till the disposal of the appeal
Fresh auction was held and sale was knocked down in favour of Ramnarayan the second purchaser
The appeal of the first purchaser was subsequently allowed by the High Court and the first sale in his favour was confirmed
Both Maganlal and Ramnarayan have filed two separate appeals in this Court challenging the order of the High Court
Maganlal made an application before this Court under Order 34 Rule 5 of the Code being CMP No 9940 of 1982 for redemption of the mortgage and has urged that in case CMP No 9940 of 1982 is allowed it would not be neces sary for him to press the merits of the appeal
This conten tion has not been seriously disputed by the first and the second purchasers
They have however opposed this applica tion on the ground that i an order of sale of the mort gaged property passed 697 by the District Judge under section 32 of the Act after affecting an attachment under section 31 thereof will not come within the purview of a final decree for sale of mort gaged property contemplated by Order 34 Rule 5 of the  Code and as such the benefit of that provision could not be extended to Maganlal ii the High Court having confirmed the sale in first purchaser s favour an application under Order 34 Rule 5 of the Code is not maintainable inasmuch as the said provision contemplates payment on or before the day fixed or at any time before the confirmation of a sale  and iii section 328 of the State Finance Corporation Act makes the manner provided in the Code applicable only as far as practicable and there was neither a decree nor was the Financial Corporation a decree holder in a suit for sale it was only deemed to be a decree holder by legal fiction because of the expression in execution of a decree as if the Financial Corporation were the decree holder
On the other hand it is contended on behalf of Maganlal that i Order 34 Rule 5 of the Code is attracted even to an order of sale of mortgaged property passed under section 32 of the Act and since the right of redemption which vests in Maganlal has not yet extinguished in view of the pendency of these appeals there is no impediment in the relief contem plated by Order 34 Rule 5 of the Code being granted
and ii in view of sub section 8 of section 32 of the Act the applicability of the provisions of Order 34 Rule 5 of the Code cannot be denied to the facts of the instant case
Allowing the CMP and the appeal filed by Maganlal and granting consequential reliefs to the first and the second purchasers this Court
HELD 1 In case the provisions of Order 34 Rule 5 of the Code are held to be applicable to the facts of the instant case appropriate relief can be granted thereunder as the order of confirmation of the sale passed by the High Court in favour of the first purchaser has not become abso lute due to the pendency of these appeals against that order nor has the right of redemption of Maganlal yet extin guished
707F G Chandra Mani vs Anarjan Bibi AIR 1934 PC 134 Nilayam Ramkrishan Rao vs Kandokari Chellayamma  Anr   SV Ramalingam  Ors
vs KE Rajagopa lan  Ors  M Sevugan Chettiar vs VA Narayana Raja AIR 1984 Mad 334 Raghunath Singh  Ors
vs Pt
Hansraj Kunwar  698 Ors AIR 1934 PC 205 and Mhadagonda Ramgonda Patil  Ors
vs Shripal Balwant Rainade  Ors  referred to
2 An application under section 311 of the Act cannot be put on par to a suit for enforcement of a mortgage nor the order passed thereon under section 32 of the Act be put on par as if it was an order in a suit between a mortgagee and the mortgagor for sale of mortgaged property
On the other hand the substantive relief in an application under section311 is something akin to an application for at tachment of property in execution of a decree at a stage posterior to the passing of the decree
710E F Gujarat State Financial Corporation vs Ms Natson Manu facturing Co P Ltd  and Ms Everest Industrial Corporation  Ors
vs Gujarat State Financial Corporation   referred to
3 The purpose of enacting sections 31 and 32 of the Act was apparently to provide for a speedy remedy for recov ery of the dues of the Financial Corporation
This purpose however was in cases covered by clause a of sub section 1 of section 31 confined to the stage of obtaining an order asking to a decree in a suit in execution whereof the property pledged mortgaged hypothecated or assigned to the Financial Corporation as security for the loan or advance could be sold
Sections 31 and 32 of the Act cut across and dispense with the provisions of the Code from the stage of filing a suit to the stage of obtaining a decree in execution whereof such properties as are referred to in clause a of sub section 1 of section 31 could he sold
After this stage was reached sale in execution of an order under section 32 of the Act was for purposes of execution put at par with sale in execution of a decree obtained in a suit by enacting sub section 8 of section 32 of the Act
711H 7 12B 4 If in its anxiety to ensure speedy recovery of the dues of the Financial Corporation Parliament had intended also to cut across and dispense with the procedure contained in the Code for execution of a decree for sale of such properties as are referred to in clause a of sub section 1 of section 31 of the Act it would have made some provi sion analogous to provisions contained in the enactments for revenue recovery
But that was not done
Instead sub sec tion 8 was incorporated in section 32 of the Act
712F 5 As is apparent from the plain language of section 328 of the 699 Act the legal fiction was created for the purpose of exe cuting an order under section 32 of the Act Tim  sale of attached property as if such order was a decree in a suit for sale and the financial Corporation was the decree holder whereas the debtor was the judgment debtor
714B It is settled law that a legal fiction is to he limited to the purpose for which it was created and should not he extended beyond the legitimate field
713H The Bengal Immunity Company Ltd vs The State of Bihar  Ors  East End Dwellings Company Ltd vs Finsbury Borough Council 1952 Appeal Cames 109 The Commissioner of Income tax Bombay vs Amarchand N Shroff 1963 Supp
1 SCR 699 Commissioner of Income Tax Gujarat vs Vedilal Lallubhai  and Nation al Sewing Thread Co Ltd vs Jamesh Chadwick  Bros Ltd   referred to
6 The provisions of the Code of Civil Procedure with regard to execution of a decree for sale of mortgaged property contained in Order 21 of the Code including the right to file an appeal against Such orders passed during the course of execution which are appealable shall apply mutasis mutandis to provisions of an order under section 32 of the Act unless such provision is not practicable to he applied
714C 7 Since in the instant case the equity of redemption has not extinguished there is no good ground to take the view that even though all the remaining provisions with regard to execution of a decree for sale of mortgaged property will apply to execution of an order under section 32 of the Act the provision contained in Order 34 Rule 5 of the Code shall not apply
Nothing has been brought to the notice of the Court as to how and why it is not practicable to apply the said provision
7 14F