1 Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8979 OF 2003 Tukaram Sattopa Powar ..Petitioner Age : 58 years, Occu : Agriculturist Residing at 149 B, Jawahar Nagar Kolhapur. V/s. 1. Shivaji Jotiram Patil ..Respondents Age : 56 years, Occu : business Residing at Plot No.158 Mahatma Jyotirao Phule Housing Society, Phulewadi, Kolhapur. 2. Mahadeo Joti Patil Age : 50 years, Occu : business 3. Bhivaji Joti Patil Age : 45 years, Occu : service (Both residing at City Survey No.307, 5th Stop, Phulewadi, Kolhapur.) Mr.S.V.Sadavarte, Advocate, for the Petitioner Mr.Mandar Limaye, Advocate, for the Respondent Nos.2 & 3 CORAM : A.S.OKA, J. DATE : 19TH APRIL, 2010 2 JUDGMENT . Heard the learned Counsel appearing for the Petitioner and the learned Counsel appearing for the Respondent Nos.2 and 3. 2. The Petitioner original auction purchaser has taken an exception to the Judgment and Order dated 6th October, 2003 passed by the learned Trial Judge. The Sangli Bank Limited had filed a Suit against the 1st Respondent for recovery of money. The Suit was decreed. In execution of the decree, at the instance of the plaintiff/decree holder, the suit property was put to sale. An application was made by the 2nd Respondent in the execution application raising an objection to the auction sale which was proposed to be held on 12th April, 2001. It was contended that the 2nd and 3rd Respondents have 1/3rd share each in the property which was put to auction sale. The prayer in the application was for setting aside the auction. 3. On 9th April, 2002 the 2nd and 3rd Respondents filed a pursis stating that they were not interested in prosecuting the 3 application at Exhibit 60. Thereafter, the auction was held and the sale in favour of the Petitioner was confirmed. After deposit of the sale price, the executing Court issued sale certificate on 12th June, 2002. Thereafter, an application was made by the Petitioner by invoking Rule 95 of Order XXI of the Code of Civil Procedure, 1908 (Hereinafter referred to as “the said Code”) for issuing a warrant of possession of the property purchased by him. On 7th February, 2003 the 2nd and 3rd Respondents filed an application purporting to be an application under Sub­rule 2 of Rule 10 of Order I of the said Code for impleading the said Respondents as parties to the execution application. By the impugned Order, the said application has been allowed. 4. The learned Counsel appearing for the Petitioner submitted that an application made by the 2nd and 3rd Respondents for setting aside the auction was not pressed by them. He submitted that the application on which the impugned Order was passed was filed only after the sale certificate was issued in favour of the Petitioner and after the Petitioner applied for possession. He submitted that the 4 application was not maintainable. 5. The learned Counsel appearing for the 2nd and 3rd Respondents supported the impugned Order. He submitted that the 2nd and 3rd Respondents were having 1/3rd share each of the property sold to the Petitioner in auction and they are in possession of a part of the property. He submitted that the effect of the impugned Order is that the 2nd and 3rd Respondents will be heard and therefore, there is no prejudice to the Petitioner. 6. I have given careful consideration to the submissions. Before the auction could be conducted, the 2nd and 3rd Respondents had filed an application at Exhibit 60 raising various objections to the auction sale including an objection that they had 1/3rd share in the property. By filing a pursis on 19th April, 2002 the said application was not pressed. 7. The impugned Order has been passed on application under Rule 10(2) of Order I of the said Code. On the face of it, the said application was not maintainable. 5 Moreover, the auction sale was already completed and the sale certificate was already issued. The trial Court not only allowed the said application but also observed that the 2nd and 3rd Respondents have vested interest in the suit property and the trial Court directed the said Respondents to adduce the evidence. Perhaps a remedy was available to the 2nd and 3rd Respondents either under Rule 89 or Rule 90 of Order XXI which was not availed of by the Respondents. After sale certificate was issued, an application made by the 2nd and 3rd Respondents under Rule 10(2) of Order I of the said Code was not maintainable and the same ought to have been rejected only on that ground. The remedy of the 2nd and 3rd Respondents was to adopt procedure provided under the said Code. 8. Hence, the impugned Order will have to be quashed and set aside. Accordingly, I proceed to pass the following Order. (i) The impugned Order dated 6th October, 2003 is quashed and set aside. (ii) The application made by the 2nd and 3rd Respondents being Miscellaneous Application No. 6 286 of 2002 stands dismissed. (iii) Rule is made absolute in above terms with no orders as to costs. (A.S.OKA, J.)