{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.7218 OF 2008 Smt.Jubedabegum Asadulla Khan PETITIONER VERSUS The State of Maharashtra and others RESPONDENTS ....... Mr.B.N.Patil h/f Mr.R.N.Kolekar, for petitioner Mr.K.B.Chaudhari, Addl.G.P. For respondents No.1, 2 and 5 Mr.A.R.Joshi, Advocate for respondents No.3 & 4 Mr.A.P.Bhandari h/f S.V.Gangapurwala, for respondent No.6 ....... [CORAM : A.V.POTDAR, J.] DATE : 23rd June 2009 PER COURT: 1. By the present writ petition, the petitioner has challenged the action of respondent No.4, of issuance of proclamation in respect of land Gut No.59. 2. The factual matrix of the matter can be summarized as follows- The petitioner claimed to be the owner and possessor of the land Gut No.59, subject matter of the present petition. It appears {2} that respondent No.2, had issued recovery certificate u/s 101 of the Maharashtra Cooperative Societies Act (Hereinafter, for the sake of brevity, to be referred as the said Act), to which according to the petitioner, he was not a party. It is the grievance of the petitioner that he was not heard before issuance of the said certificate. The proclamation was issued in respect of sale of the said land on 23.08.2007. Sale of the said land was held on 24.08.2007. According to him, his name was not mentioned in any of the proceedings. It further appears that respondent No.5, issued letter to respondent No.6 to hand over possession of which the petitioner got knowledge on 03.12.2008. According to the petitioner, the action of the respondents is high handed and as there is no other remedy available, he has approached this Court under extra ordinary writ jurisdiction. 3. Considering the submissions across the bar, perused section 101 of the said Act, which speaks for issuance of recovery certificate under the provisions of the said Act. Section 154 of the said Act speaks for revision to be filed to challenge issuance of said recovery certificate while section 156 speaks for Registrar’s powers to recover certain amount,sale of the attached property and the procedure is laid down as to how these powers to be exercised under Rule 107 of the Maharashtra Cooperative Societies Rules, 1961. Different modes are given about the attachment and sale of the movable as well as immovable property, which is the subject matter of recovery certificate issued u/s 101 of the said {3} Act. So far as the procedure, as laid down under Rule 107 of the Rules of 1961 speaks for the procedure for attachment and sale of the property u/s 156. That means Rule 107 of the Rules of 1961 under the said Act to be read with provisions of section 156 of the said Act. On bare perusal of the provisions of Rule 107, it appears that the same is at par with the provisions of Order 21, of the Civil Procedure Code. Challenge in this petition is to the action of the respondents of sale of the property, which was under attachment, subject matter of recovery certificate issued u/s 101 of the said Act. Under Sub Rule 19 of Rule 107, sub Rules (a) and (b) speaks about how the objection, if any, as regards action of attachment and sale are provided thereunder. For clarity, it is necessary to reproduce Rule 107 (19) (a) to (c), which reads as under - “19 (a) Where any claim is preferred to or any objection is made to the attachment of, any property attached under this rule on the ground that such property is not liable to such attachment, the Sale Officer shall investigate the claim or objection and dispose it of on merits: Provided that, no such investigation shall be made when the Sale Officer considers that the claim or objection is frivolous. (b) Where the property to which the claim or objection relates has been advertised for Sale, the Sale {4} Officer may postpone the sale pending the investigation of the claim or objection. (c) Where a claim or an objection is preferred to the party against whom an order is made may institute a suit to establish the right, which he claims to the property in dispute, but, subject to the result of such suit, if any, the order shall be final.” 4. After going through sub rules 19 (a) to (c), which are quoted above, the proper remedy to challenge the action is to file an objection before the authority / officer, who has ordered the auction sale of the property under attachment. This is the proper remedy available to the petitioner herein. As the petitioner has approached this Court without exercising this remedy, the writ petition is not maintainable. 5. To the query put by the Court, learned advocate for respondents No.3 and 4 stated that the respondents are ready to hear the petitioner, in case any objection is filed before them. In the premise, though the writ petition is not maintainable, yet the same is disposed of with following directions. 1. The petitioner to approach respondent No.4 within a period of 2 weeks from today, in respect of objection regarding sale by respondent No.4 to respondent No.6 {5} 2. Respondent No.4 to hear the objection of the petitioner, in accordance with law and to decide the objections, if any, within a period of 4 weeks thereafter. 3. In case any adverse order is passed against the interest of the petitioner, then the petitioner is entitled to file suit, in accordance with law. The protection granted in favour of the petitioner, to continue for a period of 4 weeks after the order would be passed by respondent No.4, on the objections filed by the petitioner. 6. The writ petition stands disposed of with no order as to costs. [A.V.POTDAR, J.] drp/wp7218-08