JUDGMENT - F.I. REBELLO, J.:---The applicant the Abhyudaya Co-operative Bank Limited has moved this Court in proceedings for execution taken out against the defendant No. 1. It is the case of the applicant that order dated 22nd January, 1999 passed by the Commissioner for Taking Account of this Court, be set aside and it be declared that the said order is illegal., bad-in-law and passed without any application of mind. There is also a prayer for interim relief in terms of prayer Clause (b) and some other reliefs which I need not advert to presently.

2.It is the case of the applicant that they had advanced money to defendant No. 1. In respect of the amount advanced, as defendant No. 1 failed to pay the amount, dispute was raised under the provisions of the Maharashtra Co-operative Societies Act. An Award came to be passed against the defendant No. 1 on 3rd July, 1995. The applicant thereafter proceeded to execute the said Award. On 22nd December, 1995 a certificate was issued in their favour to execute the Award as arrears of land revenue. On 23rd December, 1995 a demand notice was issued under section 156 of the Maharashtra Co-operative Societies Act. On 11th April, 1996, Flat No. B-6 situated at The Peddar Road Chandan Co-operative Housing Society Limited, Peddar Road, was attached in the course of the said execution proceedings.

In the meantime Chamber Summons No. 1212 of 1997 in Execution Application No. 86 of 1996 in Suit No. 3931 of 1994 came up for hearing and this Court by order dated 28th November, 1997 disposed of the said Chamber Summons in terms of the Consent Terms. It may be mentioned that one Mrs. Devyani Pradeep Sadh who is the wife of defendant No. 3 has claimed 50% right in the said flat. In the Consent Terms signed to which the applicant is not a party, the plaintiffs disputed the right of Mrs. Devyani Pradeep Sadh. However, without prejudice, it was agreed that the interest of Pradeep Rameshchandra Sadh in the suit flat would be sold. More relevant is Clause 6, which reads as under:-

"The Commissioner for Taking Accounts shall disburse the sale proceeds amongst the plaintiff and other judgment debtors of defendant No. 2 and the surplus if any shall be deposited with the Prothonotary and Senior Master to the credit of the defendant No. 2."

Pursuant to these Consent Terms, the suit flat came to be sold. The plaintiffs in Suit No. 3931 of 1994 M/s. Nav Prabhat Enterprises informed the applicant about the said order. By letter dated 24th April, 1998, the Special Recovery Officer (GR-1) wrote to the Commissioner, the respondent No. 1 herein, that the applicant had an Award in their favour and also an Execution Certificate and in terms thereof the amounts due and payable to the applicant was Rs. 17,02,328/-. It was also mentioned therein that the applicant Bank has an exclusive lien on Flat No. 6-B at Chandan Co-operative Housing Society. It was mentioned therein that the flat was put up for auction in the execution proceedings but the same could not be completed for various reasons. The Execution Officer requested the Commissioner that the sale proceeds of the above flat be remitted to him for total adjustment of Bank dues. The Commissioner, thereafter, heard claims by various decree-holders as also the applicant herein. By the impugned order dated 22nd January, 1999 the Commissioner for Taking Accounts rejected the claim filed on behalf of the applicant therein. It is in these circumstances that the present Chamber Summons has been moved by the applicant. One other aspect is that the Commissioner has on 3rd February, 1999 and 5th February, 1999 paid to the various decree-holders who had lodged claims an amount of Rs. 52,41,636/-. The present Chamber Summons was moved on 30th March, 1999.

3.At the hearing of the Chamber Summons on behalf of the applicant it is contended that the respondent No. 1 misdirected himself in law in rejecting their claim. It is contended that in terms of section 73 of the Code of Civil Proced

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