Back
IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
SUBBA REDDY SATTI, J.
Abbina Dathatreya - Appellant
Versus
The State of Andhra Pradesh - Respondent
Writ Petition No. 34100 of 2022
Decided On : 28-10-2022
COOPERATIVE SOCIETIES - SALE OF MORTGAGED PROPERTY - RULE 52 (13) (I) OF ANDHRA PRADESH COOPERATIVE SOCIETIES RULES, 1964 - APPLICATION FOR SETTING ASIDE SALE - TIME LIMIT - INTERPRETATION - DELAY IN FILING APPLICATION - EFFECT - WRIT PETITION - MAINTAINABILITY.
Fact of the Case:
Petitioner purchased properties from a member of a cooperative society who had mortgaged the properties to the society. The society conducted an auction sale of the properties to recover the outstanding loan amount. The petitioner, who was not aware of the mortgage, filed a writ petition challenging the sale. The court had earlier directed the petitioner to file an application under Rule 52 (13) (i) of the Andhra Pradesh Cooperative Societies Rules, 1964, to set aside the sale. The petitioner filed the application after the expiry of the 30-day time limit prescribed under the rule.
Finding of the Court:
The court held that the petitioner's application was not maintainable as it was filed beyond the 30-day time limit prescribed under Rule 52 (13) (i) of the Andhra Pradesh Cooperative Societies Rules, 1964. The court observed that the petitioner was aware of the mortgage and the auction sale, but he failed to take timely action to protect his interests. The court further held that the petitioner could have availed the alternative remedy of filing an appeal under Section 76 of the Andhra Pradesh Cooperative Societies Act, 1964, but he failed to do so.
Issues: 1. Whether the petitioner's application under Rule 52 (13) (i) of the Andhra Pradesh Cooperative Societies Rules, 1964, was maintainable despite being filed beyond the 30-day time limit prescribed under the rule? 2. Whether the petitioner could have availed the alternative remedy of filing an appeal under Section 76 of the Andhra Pradesh Cooperative Societies Act, 1964?
Ratio Decidendi: 1. The court held that the petitioner's application was not maintainable as it was filed beyond the 30-day time limit prescribed under Rule 52 (13) (i) of the Andhra Pradesh Cooperative Societies Rules, 1964. The court observed that the petitioner was aware of the mortgage and the auction sale, but he failed to take timely action to protect his interests. 2. The court further held that the petitioner could have availed the alternative remedy of filing an appeal under Section 76 of the Andhra Pradesh Cooperative Societies Act, 1964, but he failed to do so.
Final Decision: The court dismissed the writ petition at the admission stage.
ORDER :
The above writ petition is filed seeking Writ of Mandamus to declare the sale certificate issued by 2nd respondent in Letter No.431/2022 dated 30.09.2022 under sub rule 14 (v) of the Rule 52 of the Andhra Pradesh Cooperative Societies Rules, 1964 (for short “Rules 1964”) in favour of 8th respondent in relation to property covered in R.S.No.465-1, 2 & 3, of an extent of Ac.0.48 cents, Ac.3.73 cents, Ac.1.04 cents, in total Ac.5.25 cents, as illegal, arbitrary to the contrary to the Andhra Pradesh Cooperative Societies Act, 1964 (for short “Act 1964”).
2. (a) The facts germane to decide the case are that 5th respondent is a Primary Agricultural Cooperative Credit Society Limited registered under the provisions of the Act 1964 and Rules 1964; 7th respondent, one of the members of the Society took loan from the Society by mortgaging his lands; that 7th respondent committed default in payment of loan; that 5th respondent filed claim under Section 71 of the Act 1964 for recovery of dues before the Arbitrator/sale officer, office of the Deputy Registrar, DCCB Ltd., Eluru; that Arbitrator/Sale officer after enquiry issued certificates vide Nos.242/15-16, 243/15-16, 246/15-16, 253/15-16 dated 01.06.2016 and No.1874/16/17 dated 28.02.2017; that basing on the certificates issued under Section 71 of the Act 1964, Execution Petition Nos.2558/2016-17, 2597/2016-17, 40/2017-18, 60/2017-18 and 2734/2017-18 were filed under Section 70 of the Act to recover the amount by attaching and sale of the properties before the sale officer.
(b) The sale officer served demand notice in Form Nos.2 and 6 by following the procedure under Rule 52(3) of the Rules 1964 and sale notice of immovable property in Form Nos.8 and 9 were issued under Rule 52 (11) of the Rules 1964; that auction notice was published in Sakshi newspaper on 20.05.2022; that tom-tom was also made in the area where land is situated and also area of operation of the Society; that no objections were filed regarding conducting of sale/auction; that since no objections were received, sale/auction was conducted on 26.05.2022 in the premises of 5th respondent; that 8th respondent became the highest bidder in the sale/auction; that the Deputy Registrar confirmed the sale on 30.06.2022.
(c) Petitioner purchased the properties under registered sale deed dated 03.11.2015 from the 7th respondent; that before purchase of properties, he obtained encumbrance certificate from the Sub Registrar from 01.01.1983 to 31.07.2022; that encumbrance certificate does not indicate any charge or mortgage over the properties; that petitioner made application before the Tahsildar, T. Narasapuram Mandal under Section 6-A of Andhra Pradesh Rights in Land and Pattadar Pass Books Act, 1971 (for short “Act 1971”) to update the revenue records and mutate his name through mee-seva on 05.12.2019 and 22.06.2022.
(d) The Tahsildar, T. Narasapuram informed the petitioner about the registered mortgage executed by 7th respondent in favour of 5th respondent in the year 2012; that petitioner approached the respondents 2 to 5 and expressed his willingness to clear the debt, however, respondents 2 to 5 did not furnish any particulars and hence, he got issued legal notice dated 11.08.2022; that without furnishing information, the auction/sale was conducted on 26.05.2022 for realization of loan amount; that petitioner filed W.P.No.29153 of 2022 and the same was disposed of on 09.09.2022 directing the petitioner to make an application under Rule 52 (13) (i) of the Rules 1964 and it was further directed the respondents not to take any coercive steps for a period of two weeks; that petitioner pursuant to the said direction, made an application to the 2nd respondent on 30.09.2022 and requested the authorities to cancel the auction and to inform the debt, so that he can discharge the same; that the Deputy Registrar by proceedings dated 14.10.2022 informed the petitioner that since no application was filed by the petitioner within time gi
An application under Rule 52 (13) (i) of the Andhra Pradesh Cooperative Societies Rules, 1964, to set aside a sale of mortgaged property must be filed within 30 days from the date of sale. Failure to....
The court established that compliance with procedural rules in auction sales is essential, and the burden of proof lies with those challenging the sale to demonstrate fraud or irregularity.
Only a decree holder can challenge possession under CPC; third parties lack standing, reaffirming principles of res judicata and validity in execution proceedings.
Only decree holders can contest execution proceedings; third parties, lacking legal standing, cannot invoke Order XXI provisions without just cause.
The protection of rights of the bona fide Auction Purchaser and the distinction between the Auction Purchaser and the Third Party Auction Purchaser need to be upheld by the court.
Payments made to a third party do not constitute valid discharge of debt obligations to the primary creditor under cooperative society regulations.
The court affirmed that prior judicial decisions are binding and that internal payment arrangements do not negate loan obligations under cooperative society regulations.
The main legal point established is that compliance with the provisions of the Kerala State Co-operative (Agricultural and Rural Development Banks) Act, 1984 and the Rules is essential for valid fore....
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
