JUDGMENT :

S.R. Brahmbhatt, J.

The petitioner, the applicant in exhibit-43 application preferred in Special Darkasht No.81 of 2007 in the Civil Judge (SD) Court, Vadodara, has filed this petition, inter alia challenging the order dated 23/2/2010 where under the Court has rejected the application exhibit-43 filed by the petitioner under Order-XXI Rule 89 & 90 of Civil Procedure Code for setting aside the sale of the properties in question.

2. Facts in brief leading to filing this petition as could be culled out from the memo deserve to be set out as under:

The petitioner happened to be a partner in a firm called Abhilasha Construction, respondent no.2. The partnership firm obtained financial assistance from respondent no.1 Co-Operative Bank. The loan could not be repaid and hence the bank had to file Summary Lavad Suit No.356 of 2004 against the petitioner as well as other partners of the said partnership firm. During pendency of said suit, as stated by the petitioner in the memo, the partnership firm applied for releasing 12 flats and 2 pent houses on condition of depositing 65.00 lakhs. The Board of Nominee vide its order dated 13/5/2005 conditionally permitted the release of said properties on deposit of the said amount. The amount so permitted to be deposited as a condition for release could not be deposited by the petitioner. The Board of Nominee vide order dated 12/8/2004 granted leave to defend the suit on a condition of depositing 33% of the suit claim with the bank. Said amount also could not be deposited, resulting into passing of the decree on 14/9/2004 in favour of the bank. Said judgment & decree was carried in appeal before the Gujarat State Co-operative Tribunal which came to be registered as Appeal No.692 of 2004, which, as per the say of the petitioner was not disposed of. The bank filed darkhast for recovering the amount decreed in its favour. Darkhast being Special Darkhsat No.81 of 2004 came to be filed before the Civil Judge (S.D.) Vadodara on 1/11/2007.The application below exhibit – 4 came to be filed for appointment of Court Receiver for bringing about execution of decree. Said application was filed on 2/11/2007 i.e. the next date of filing of darkhast. The court allowed said application on 2/11/2007 itself and Court Receivers were permitted to sell the property and make report to the Court within 15 days. The petitioners have contended that the order dated 2/11/2007 came to be passed without hearing or without issuing any notice to the petitioner. The Bank filed application below exhibit-5 on 1/11/2007 for issuance of warrant for attachment of property in question which on account of the order passed on 2/11/2007 was allowed. The bank preferred application on 10/12/2007 seeking direction that Court Receiver may sell or dispose of the property in question which came to be allowed vide order dated 10/12/2007. The property being 12 flats and 2 penthouses came to be sold to third parties i.e. 12 flats in favour of respondent Nos.7, 8 & 9 in pursuance of the order passed by the court. This sale was proceeded by an advertisement for auction released by the Court Receivers in Loksatta daily on 21/11/2007 which did not mention the upset price for the property and therefore it is contended on behalf of the petitioner that the advertisement was not in consonance with law. One more advertisement being advertisement for sale of bungalow was released on 13/1/2008 and the sale was concluded in favour of respondent no.10 by the Court Commissioner/Receivers.

3. The petitioner preferred petition on 28/12/2007 being Special Civil Application No.31094 of 2007 challenging the sale proceedings of 12 flats and 2 penthouses on the ground of fraud and also on the ground that there was buyer available who was prepared to pay Rs. 1.7 crore for the said property. On 5/3/2008 this Court (Coram: Akil Kureshi, J) directed the proposed buyer suggested by the petitioner to deposit a sum of Rs. 50.00 lakhs and ordered status-quo to be maint