The power of sale without the intervention of the Court under Section 11(1) of the Assam Co-operative Land Mortgage Bank Act, 1960, can only be exercised if it is expressly conferred by the mortgage deed and if the Board of Directors has previously authorized such exercise.

GOSWAMI, C. J.:- This application under Article 226 of the Constitution of India is directed against an order of the Assistant Registrar of Co-operative Societies Cum Sale Officer, Co-operative Land Mort­gage Bank Ltd., Gauhati, dated 23-11-68 by which he held an auction sale of certain immovable property belonging to the peti­tioner which was subject to a mortgage to the Co-operative Land Mortgage Bank Ltd.

2. It is stated that the mortgagor failed to pay the dues and the mortgaged property was put to auction sale after giv­ing requisite notice to the mortgagor. Annexure 'B' is a notice under Section 11 (2) (b) of the Assam Co-operative Land Mort­gage Bank Act, 1960, hereinafter called 'the Act'. This notice shows that the land was sold in public auction under Section 12 of the Act. It is, therefore, difficult to ap­preciate the submission of Mr. K. P. Sen on behalf of the Bank that the sale did not take place under the provisions of this Act. Mr. Sen on behalf of the Bank has urged that we should not look into the provisions of the Act but should be guided^ by the provisions of the Assam Co-operative Socie­ties Act, 1949. In view of the very notice (Annexure *B'), this submission is absolutely without any force. The Respondent No. 1 acted in conformity with the provisions of this Act and, therefore, we will have to take into consideration only the provisions of this Act and not of the Assam Co-operative So­cieties Act, as urged by Mr. Sen. Mr. B. M. Goswami, the learned Counsel for the peti­tioner, submits that before recourse is taken to S. 11 (1) of this Act, there are cer­tain conditions precedent which have to be fulfilled. We will, therefore, read this sec­tion:

"11. (1) Notwithstanding anything con­tained in the Transfer of Property Act, 1882, where a power of sale without the intervention of the Court is expressly con­ferred on the Mortgage Bank by the mort­gage deed, the Committee of such bank or any person authorised by such Committee in this behalf shall, in case of default of payment of the mortgage money or any part thereof, have power in addition to any other remedy available to the Bank to bring the mortgaged property to sale with­out the intervention or the Court.

(2) No such power shall be exercised unless and until-

(a) the Board has previously authoris­ed the exercise of the power conferred by sub-section (1) after hearing the objections, if any, of the mortgagor:

(b) *

(c) •

We have asked Mr. Sen whether the Board in this case, the Board of Directors of the Gauhati Co-operative Land Mortgage Bank Ltd., had previously authorised the exercise of the power under Section 11 (1) of the Act. The learned Counsel frankly admits that no such authorisation has been given by the Board. Faced with this position, the learned Counsel did not like to rely upon the provisions of this Act but took re­course to the provisions of the Assam Co­operative Societies Act to which we have already adverted.

3. Mr. Sen next contends that Sec­tion 18, at any rate, would bar adjudication of any question of title of the purchaser on the ground of irregularity of the sale etc. We may, therefore, read that section.

"18. Where any property is sold in the exercise or purported exercise of a power of sale under the provision of this Act, the title of the purchaser shall not be question­ed on the ground that-

(a) the circumstances required for authorising the sale had arisen; or

(b) due notice of the sale was not given; or

(c) the power of sale was otherwise improperly or irregularly exercised;

but any person who has suffered any damage by an unauthorised, improper or irregular exercise of any such power shall have a remedy in damages against the mortgage Bank. Such property, shall vest in the purchaser free from all encum­brances. '

4. Taking the second submission first, before Section 18 of the Act can be called in aid in an appropriate proceeding, there must be an exercise of the power under Section 11 (1) of the Act. Section 11 (2) in terms gives a ma

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