A party cannot set aside an auction sale on the grounds of absence of notice or lack of authorization of its representative if it has not exercised due diligence in pursuing the process of the auction sale.

( 1 ) THE order dated December 2,1997 passed in GA No. 3668 of 1997 and GA No. 4167 of 1997 in CS No. 384 of 1977 by the learned Single judge is under challenge in this appeal APO No. 596 of 1997 (APOT No. 742 of 1997 ). By the said order the appellant's application for setting aside the sale and the respondent's application for confirmation of the sale had since been disposed of by affirming the sale and dismissing the application for setting aside the sale.

( 2 ) THE suit CS No. 384 of 1977 out of which the present proceeding arises was a suit for partition instituted in 1997. The shares were declared on 27th July, 1979. Except three properties all properties were divided in two lots and the respective lots were allotted to the respective parties according to the respective share. The parties all along claiming moiety share in between the two groups descending from two predecessors. These three properties were allowed to be put on sale in between the parties without valuation. The Commissioner of Partition had given notice to the respective learned Advocate-on-record for the parties. The parties were being represented by their respective learned Advocate-on-record. On the crucial date one Ms. Sima Dudhoria, one of the plaintiffs, appeared along with the learned Advocate-on-record for the plaintiffs and submitted that she was authorized by the other plaintiffs. But, however, in the auction she declined to bid. On the allegations that during that point of time the appellant and the other plaintiffs were out of Calcutta and were unable to keep track of the proceedings, and after having returned to Calcutta the appellant came to learn about the development which she discovered through correspondence from her learned Advocate-on-record, she had made this application for setting aside the sale. The other plaintiffs did not join here in the application. But, however, one of the other plaintiffs has preferred the other appeal APOT No. 71 of 1998 against the same order dismissing the application for setting aside the sale and allowing the application for confirmation of sale. She is plaintiff No. 1 represented by Mr. Pratap Chatterjee supporting the appellant in this appeal. The other appeal APOT no. 71 of 1998 filed by the plaintiff No. 1 is also taken up for hearing along with the present appeal.

( 3 ) THE learned Counsel for the appellant in this appeal had assailed the order on two grounds : viz: (1) that there was no notice on the plaintiff No. 4 ms. Amita

Dudhoria or the plaintiffs, as the case may be, and that (2) Ms. Sima dudhoria was never authorized to represent them and had in effect colluded with the defendants. In the appeal, there was another attempt for holding the auction fresh in which certain process was undertaken but ultimately failed which would be apparent from different orders passed in this appeal. The matter travelled to the Apex Court but ultimately the matter was remanded since the appeal was against the interim order. In this Court terms of settlement was put in, but after the attempt of sale failed, the terms of settlement was also recalled. In this process, another question cropped up with regard to the participation in the sale through groups or individually. The defendants resisted individual participation in the auction and insisted upon group participation while the appellant resisted group participation and insisted upon individual participation and intended us to permit individual participation.

( 4 ) HAVING regard to the facts and circumstances of this case, the question of participation in the auction individually or as a group would arise only if the order appealed against is set aside and not otherwise. Therefore, we would propose to take up the question as to whether the order appealed against is liable to be set aside or not.

( 5 ) ADMITTEDLY, Rajesh Khaitan and Co. was representing the plaintiffs throughout the suit. Mr. A. P. Agarwalla on behalf of Rajesh Khaitan and Co.