Non-compliance with the mandatory requirement of section 91(2)(a)(ii) of the Co-operative Societies Act, which requires notice to all persons with interest in the property, renders the sale of mortgaged property void.

JUDGMENT :

G.B. Patnaik, J. - Petitioner who had mortgaged his lands over plot no. 66, 89 and 90 in holding no. 5 of mauza Tengnabasa of Nawapara sub division in the district of Kalahandi in favour of Nawapara Co-operative Land Development Bank Limited (opposite party no. 3) and had obtained a loan of Rs. 10,000/- from the said Bank has filed this writ petition to quash the sale of his aforesaid lands in favour of opposite parties 4 and 5 and confirmation of the said sale on the ground that the sale is without jurisdiction.

2. According to the petitioner, the Sale Officer having been authorised by the Bank (opposite party no. 3) in exercise of powers conferred under section 91 of the Co-operative Societies Act (hereinafter referred to as the 'Act ) has sold the property without complying with the provisions of section 91(2)(a)(ii) of the Act, inasmuch as two adult members of the family of the petitioner, namely, Abhoy Sankar Joshi and Radharaman Joshi who had admittedly an interest in the property mortgaged, were not noticed as required under sub-section (2)(a)(ii) of section 91 of the Act. The sale in question is, therefore, without jurisdiction and a nullity. It was further contended that under Rule 141 of the Orissa Co-operative Societies Rules (hereinafter referred to as the 'Rules), it was incumbent upon the authority, namely, the Sale Officer, to give notice in writing to all persons referred to in sub-section (2) of section 91 of the Act indicating that the property in question was going to be sold by public auction and a copy of the proclamation of sale must be delivered to all the persons as referred to in sub-section (2) of section 91 of the Act. But in this case, the sale proclamation was not delivered to the two adult members, namely Abhoy Sankar and Radharaman. That apart certain other irregularities in the conduct of sale were also pointed out. But in view of our findings given below on the two contentions raised above, it is not necessary for us to elaborate on other submissions of the learned counsel for the petitioner.

3. Mr. P.V. Ramdas appearing for the opposite parties 4 and 5 contended before us that the mortgage in question having been made by the karta of a joint family, notice on the mortgagor would be a substantial compliance of the requirements of subsection (2) of section 91 of the Act and the sale could not be held to be void merely because some other persons having interest in the land were not noticed. Similarly, he contended that non-service of a copy of the proclamation on some members of the family would not constitute a contravention of Rule 141 of the Rules since the father who is the karta of the family received a copy of the proclamation. It was also contended by the learned counsel that the petitioner who admittedly received the notice had no locus standi to make a grievance on the ground that some other sons were not noticed duly.

4. The property in question is admittedly a joint family property which had been mortgaged in favour of the Land Development Bank and, therefore, all the sons of the mortgagor who was the karta of the family had definite interest in the property mortgaged. There is no denial in the counter affidavit filed either by the purchasers or by the Assistant Registrar who is the principal Sale Officer under the Act to the assertion made in the Writ petition that no notice as required under sub-section (2) of section 91 of the Act had been served on the two adult members of the family. The question to be considered is whether non-service of notice on the two adult members of the family who had a definite interest in the property mortgaged would vitiate the sale in question or not. A perusal of the provisions of section 91 will mike it clear that the power of sale conferred under sub-section (1) of section 91 can be exercised only when the requirements of sub-section (2) are complied with. The language used in sub section (2), "No such power shall be exercised unless and until