R. K. ABICHANDANI, J.

( 1 ) THE appellant - Municipal Corporation has challenged the judgement and order of the learned Single Judge quashing the proceedings initiated by the respondent corporation for the sale of the property scheduled in the petition and restraining the corporation from selling or attempting to sell by public auction or otherwise the property in question and from taking any steps against the property for recovery of its property tax dues for the period prior to the auction sale.

( 2 ) THE respondent - petitioner had prayed for a direction against the municipal corporation for not proceeding with the sale of the property for realisation of its dues in respect of that property for any period between 24th February 1955 and 17th July 1973. According to the petitioner, since it had purchased the property bearing survey No. 70 admeasuring 6050 sq. yards (1 Acre and 7 Gunthas approximately), which was specified in the schedule to the petition, in a public auction which was held on 17th July 1973 by the Commissioner for taking Accounts pursuant to the orders made in Darkhast No. 304 of 1971 by the Ahmedabad City Civil Court for execution of the mortgage decree obtained by the Gujarat State Finance Corporation against the original owner mortgagor M/s Shivlal Virchand Contractor and a sale certificate was issued in respect of the said property, the respondent petitioner became its absolute owner from 17-1-1974 and had acquired a title free from all charges and mortgages created subsequent to the date of the first mortgage which was created on 24-2-1955 in favour of the Bombay State Finance Corporation by the original owner. The case of the respondent - petitioner was that, after the petitioner became the owner, the scheduled property could not be sold by the appellant corporation for recovery of its taxes which were due from the mortgagor -defaulter for the period between 24-2-1955 and 17-7-1973 in respect thereof. The case of the respondent is that, before it purchased the property at the said public auction, it had also acquired the decretal rights of the second mortgagee, which was the firm of M/s Rajendrakumar and Co. under a registered deed of assignment dated 20-9-1970. The second mortgage was created by the original owner in favour of that firm on 13-10-1964.

( 3 ) THE municipal corporation, on the other hand, contended that the property tax was due in respect of the scheduled property for the years 1965-66, 1966-67, 1967-68 and 1968-69, and that, though the property was first mortgaged with the BSFC on 24th February 1955 by the original owner M/s Shivlal Virchand Contractor and again on 13th October 1964 with the firm of M/s Rajendrakumar and Co. , these were only simple mortgages and the possession as well as the title were retained by the original owner who was primarily liable to pay the property tax for the aforesaid years. The property in question was admittedly attached by the municipal corporation for recovery of these dues on 22nd March 1973 i. e. before the sale was effected in favour of the present respondent at the public auction, pursuant to which he was issued a sale certificate. The case of the municipal corporation was that when the property was being sold at the public auction through the Court, the municipal corporation had filed an affidavit of its official of the Tax department on 15-5-1973 before the City Civil Court requesting specifically to draw the attention of any party who intended to purchase that property to the fact that the tax arrears of Rs. 1,07,900=51 were due and payable to the municipal corporation in respect of the said property. It was also stated in that affidavit that the fact that the dues of the municipal tax constituted the `first charge over the property should be incorporated in the conditions of auction sale and the same was also required to be brought to the notice of the intending bidder at the auction which was to commence, as per the advertisement published in th

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