(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 11028 OF 2010 Santosh Bhoju Patil, Age : 57 years, Occupation : Agriculture, R/o. Adawad, Taluka : Chopada, District : Jalgaon. .. Petitioner. versus The State of Maharashtra, Through its District Deputy Registrar, Cooperative Societies, Jalgaon, and 7 others. .. Respondents. ....................... Mr. Vijay B. Patil, Advocate, for the petitioner. Mr. D.R. Korde, Assistant Government Pleader, for respondent nos.1 and 2. Respondent no.3 served (Absent). Mr. M.S. Deshmukh, Advocate, for respondent nos.3 and 4. Respondent no.5 served (Absent). Mr. P.V. Ambade, Advocate, for respondent nos.6 and 7. (2) Mr. R.R. Karpe, Advocate, for respondent no.8. ........................ CORAM : B.P. DHARMADHIKARI, J. DATE : 28TH JANUARY 2011 COURT'S ORDER : 1. Heard learned Counsel for the respective parties. None for respondent no.5, though duly served. 2. The respondent no.5 in the present petition is the original borrower. He has not questioned either recovery certificate or then attachment of mortgage property or its sale. The petitioner, who happens to be brother and a party executing mortgage deed, has assailed the auction proceedings on various grounds. His contention is after mortgage, property was partitioned and it is his share which has been proceeded against. The share of respondent no.5 has not been touched. 3. Today, Mr. V.B. Patil, learned Counsel appearing for the petitioner, states that after receipt of reply filed by the respondent no.3 / Society, it has become clear that even notice of (3) recovery certificate was not served upon the petitioner. He is, therefore, seeking leave to amend the petition so as to incorporate challenge to that recovery certificate. 4. Mr. M.S. Deshmukh, learned Counsel appearing for respondent nos.3 and 4 / Society, is opposing this request. He states that the attachment was made openly and sale has also been conducted after proper advertisement. The property is alsoready sold to respondent no.8, the highest bidder. The sale is also confirmed; sale deed is also executed in his favour and only possession has remained to be handed over. He further states that respondent no.5, original borrower, has chosen not to appear before this Court. 5. Mr. R.R. Karpe, learned Counsel appearing for respondent no.8, has adopted arguments of Mr. M.S. Deshmukh, learned Counsel appearing for respondent nos.3 and 4. According to him, there are no bona fides in the petition. 6. Mr. D.R. Korde, learned Counsel appearing for respondent nos.1 and 2, has opposed the petition. He points out that remedy of filing revision under Section 154 of the Maharashtra Cooperative Societies Act, 1960, is available to the petitioner. (4) 7. In reply, Mr. V.B. Patil, learned Counsel appearing for the petitioner, has stated that the petitioner is being rendered landless and will be thrown on street, if this Court does not interfere. According to him, first the property of his brother, namely, respondent no.5 ought to have been proceeded against. He lastly submits that the petitioner is also ready to deposit an amount of Rs. 3,00,000/- to Rs. 5,00,000/- only to show bona fides. 8. The facts clearly show that the petitioner is party to mortgage executed by him along with respondent no.5 and other family members in favour of respondent nos.3 and 4 / Society. The mortgaged property has been proceeded against in accordance with law and attachment was never questioned. The sale has been conducted by paper publication and highest bidder, namely, respondent no.8 offered an amount approximately of Rs. 15,00,000/- His offer has been accepted. The sale in his favour has been confirmed and sale deed has also been executed. Thus, a third party interest is already created. 9. In this situation, depositing some amount by the petitioner, only to show bona fides, is not going to save the situation. I am, therefore, not inclined to interfere in exercise of (5) writ jurisdiction. 10. With liberty to the petitioner, to take steps as open to him in law, the present petition is disposed of. ( B.P. DHARMADHIKARI ) JUDGE ......................... bgp/wp11028