- (1.) Heard Sri S.M.K. Chaudhary, learned Counsel for the petitioners and Sri Rakesh Kumar learned Counsel for the opposite parties No. 1 and 2 and Sri R.P. Dwivedi, learned Counsel appearing for opposite party No. 3.
(2.) The brief facts of the case are that the father of the petitioners Nakchhed was bhumidhar of Khasra Nos. 41, 50 and 51 situated at village Faqirchak, Pargana, Tehsil and District Bahraich who had taken some loan from the Sadhan Sahkari Samiti Rahwa Bishampur District Bahraich and as he could not repay the loan an award dated 15.4.1960 was passed by the Assistant Registrar Cooperative Society Bahraich for Rs. 1,592 against the father of the petitioners. Out of Rs. 1,592 a sum of Rs. 600 was the principal amount Rs. 572 was the interest and Rs. 420 was the collection amount. In pursuance of the award dated 15.4.1960, the opposite party No. 1 moved the execution on 28.9.1975 and after attachment the property of Nakchhed, i.e., father of the petitioner was auctioned in a public auction dated 16.1.1976. The opposite party No. 3 was the highest bidder of Rs. 4,100 and accordingly he deposited 1/4th of the amount, i.e., Rs. 1,025 on the same day. Soon after the auction proceedings the father of the petitioners filed objection before the opposite party No. 1 under Rule 348 of the Co-operative Societies Rules, 1968.
(3.) The petitioners have alleged that they were minor at the time when the property was auctioned and on 17.5.1985 the petitioners moved a representation under Rules 339(K) and 342 of the U.P. Cooperative Societies Rules, before the District Magistrate (Recovery Officer) Bahraich, a copy of which has been annexed as Annexure-2 to the writ petition. On 24.9.1985, the Assistant Registrar sent a communication to the District Magistrate stating inter alia that the opinion of the D.G.C. Civil is necessary in the matter. On 24.12.1985, the D.G.C. Civil sent his opinion to the District Magistrate stating inter alia that the confirmation of sale will not be proper. Thereafter on 28.1.1986 the auction was confirmed by the District Assistant Registrar and the opposite party No. 3 was permitted to deposit the remaining 3/4th amount. Soon after the sale was confirmed on 28.1.1986, the petitioner filed the instant petition in August, 1986 and on 11.8.1986 the following interim order was passed by this Court. Issue notice to opposite parties Nos. 2 and 3. Notice on behalf of opposite party No. 1, has been accepted by the Chief Standing Counsel. Having regard to the facts that there was a writ petition filed earlier by the petitioner's father which was dismissed and that some civil proceedings were initiated which were also dismissed we were initially not inclined to entertain this petition but the petitioner filed a supplementary-affidavit in which he has indicated that the execution of the award has been made under Clause (b) of Section 92 of the U.P. Cooperative Societies Act, for which recovery the procedure of attachment and sale prescribed by the U.P. Cooperative Societies Rules, 1968, should have been followed. Since in the instant case, the sale appears to have been held without any previous notice to the petitioners, the provisions of Rules 352 have not been complied with. We, accordingly, direct that notice be issued to opposite parties 2 and 3 to show cause why the writ petition may not be admitted. It shall be indicated in the notice that the petition shall be listed for orders on the application, on 20.10.1986. Till that date if the petitioners are still in possession in spite of the sale having been confirmed in favour of the opposite party No. 3 and mutation having already been affected in his favour the petitioner shall continue to remain in possession.;