Judgment :- This writ petition by the legal heir of a Judgment Debtor whose property was brought to public auction sale in execution of an Award that the Judgment Debtor had suffered under section 70 of the Karnataka Co-operative Societies Act, 1959 (for short ‘the Act’) in Award No.596/1992-93 for a sum of Rs.98,000/- with interest which though has become final, the auction sale for execution of the said Award is nevertheless being questioned and seeking for setting aside the sale held on 23.7.1993 by filing an application under rule 38(5) of the Karnataka Co-operative Societies Rules, 1960 (for short ‘the rules’) and having failed in such an attempt not only before the authority which examined the application under rule 38(5) of the rules but also before the revisional authority – the State Government in exercise of its power under section 108 of the Act who has dismissed the revision in terms of order dated 20.04.2005 passed in Revision Petition No.CMW 15 CAP 2001 (copy at Annexure-B) this writ petition. 2. The present writ petition which is the fifth round of writ litigation before this court is for questioning the legality of the auction sale within the parameters of an application under rule 38(5) of the rules and for scrutiny before this court in the exercise of supervisory jurisdiction under Article 227 of the Constitution of India and the order reaching this court through the revisional authority who has confirmed the order of rejection of the application under rule 38(5) of the rules filed by the petitioner. 3. The revisional authority itself has passed the impugned order in the fourth round of exercise of revisional powers under section 108 of the Act and on all occasions the revision petition has been dismissed by the revisional authority. 4. The present writ petition involves the examination of the legality or otherwise of an order passed under rule 38(5) of the rules within the scope of judicial review of administrative/quasi judicial orders under Article 227 of the Constitution of India. The writ petition also involves the question as to what extent and with what degree of probity the mater is required to be examined in the supervisory jurisdiction of this court under Article 227 of the Constitution of India. 5. The writ petition also involves the question as to what extent and with what degree of probity the mater is required to be examined in the supervisory jurisdiction of this court under Article 227 of the Constitution of India. 5. While the endeavour of the writ petitioner a person claiming as one of the legal heir of the deceased Judgment Debtor whose property is undisputedly sold in a public auction dated 23.7.1993 in to wriggle out of the sale and to save the property, it is the effort on the part of the auction purchasers – respondents 6, 7 and 8 who claim their interest to sustain the auction sale in their favour by the sale officer functioning under the provision of the rules and with the contention that while there was no illegality much less any irregularity or material irregularity that has affected the auction sale, the subsequent improvement of the purchased property over the past fifteen years definitely comes in the way of upsetting the auction sale at this point of time and therefore the writ petition should be dismissed. 6. The brief facts not much in controversy leading to the above writ petition in the fifth round is by the writ petitioner claiming as one of the legal heirs of the original petitioner and original claiming under the original writ petitioner – the Judgment Debtor has its genesis in one Sri. Gopalakrishna Bhat Borrowing Certain Amount From The Fifth Respondent – Mahalakshmi Co-operative Bank Limited, Udupi and the Bank having raised a dispute under section 70 of the Act before the Joint Registrar of Co-operative Societies having acted as an Arbitrator and which had resulted in an Award dated 23.2.1993 passed in case No.596/1992-93. 7. It is for execution of this award, the recovery proceedings had been initiated by the Bank as against the property belonging to the Judgment Debtor, namely, five cents of garden land in Shivalli Village of Udupi Taluk of the erstwhile Dakshina Kannada District. 8. There is not much dispute that for execution of the Award the said property was sold in public auction on 23.7.1993. 8. There is not much dispute that for execution of the Award the said property was sold in public auction on 23.7.1993. While it is the version of the writ petitioner and writ petitioner’s predecessor in title that such auction sale has not been conducted in the manner as provided for under the Act and the rules, particularly by not adhering to the mandatory provisions of rule – 38 of the rules and for which purpose an application under rule 38(5) of the rules had been filed before the recovery officer, the Assistant Registrar of Co-operative Societies acting as recovery officer for such purpose and on the failure of the petitioner to achieve the object of the application under rule 38(5) of the rules, the unending litigation and in the fifth round of writ litigation before this court in this writ petition, it is the version of the respondents 1 to 4 – State and other officers who function as statutory functionaries under the Act and the fifth respondent – Bank itself as also respondents 6 to 8 – auction purchasers that there is absolutely no irregularity much less material irregularity or illegality in the conduct of the auction sale, that it has been conducted in a proper manner and for justifiable purpose of realizing the award amount; that the application under rule 38(5) of the rules was not made good by urging the grounds in support of the application of this nature nor was it made good that the petitioner i.e., the Judgment Debtor had suffered any substantial injury attributable to any irregularity, mistake or fraud on the part of the answering respondents in the conduct of auction sale; that there being no finding on the part of the recovery officer or .even the revisional authority that the petitioner had suffered any substantial injury of the nature referred to in the proviso to sub-rule (5)[a] of rule 38 of the rules, the application was only to be rejected as has been done by the recovery officer and as affirmed by the revisional authority; that there is absolutely no scope for interference in a matter of this nature in a petition under Article 227 of the Constitution of India; that the subsequent developments preclude this court from examining the matter of this nature at this point of time, particularly, when the auction purchasers are bona fide purchasers for valuable consideration have vastly developed the property and have put it to use for their purpose; that assuming there are some irregularities, not a case warranting interference for setting aside the sale that had taken place in the year 1993 and therefore the writ petition should be dismissed. 9. It is in such background that the writ petition has presented itself for examination. 10. To complete the narration of developments, the application though had been filed before the recovery officer by the Judgment Debtor; the Judgment Debtor had nevertheless filed a writ petition in W.P.No. 28917 of 1993 questioning the auction sale and this writ petition came to be disposed of by this court on 14.11.1994 reserving liberty to the petitioner to pursue the matter before the recovery officer – the present third respondent, on his application under rule 38(5) of the rules. 11. The application having come to be rejected in terms of the order dated 5.12.1994, that action had been made subject matter of writ petition in WP.No.35320 of 1994 before this court and further proceedings pursuant to the auction sale having been stayed and as the interim order granted in this writ petition, auction purchasers having preferred writ appeal No.691 of 1999 and while the writ appeal was allowed against the order of the learned single Judge suo motu appointing a Commissioner for the purpose of valuing the property, the appellant therein the auction purchaser having made certain proposal before the division Bench and the appeal having been disposed of with such observations, the learned single Judge who examined the writ petition 35320 of 1994 has purporting to act on the observations of the Division Bench disposed of the writ petition on 24.3.1999 (copy at Annexure-H) observing, interalia, that the impugned order, namely, the order confirming the auction sale and issue of sale certificate was required to be set aside and the matter remanded to the recovery officer for re-examination of the application under rule 38(5) of the rules, particularly, the application on merits and not to go into other aspects like delay etc., 12. The operative portion of this order reads as under: “The only reason for dismissing the application to set aside the sale was that the application was belated. The sale was in effect held on 23.7.1993. The application ought to have been filed on 23.8.1993. The learned counsel for the petitioner submitted that 23.8.1993 was public holiday on account of death of the late Chief Minister Gundu Rao and that was the reason the petitioner could not file the application on 24.8.1993. Hence, he submits that the application was presented within time and it cannot be treated as belated. The learned counsel for the petitioner submitted that 23.8.1993 was public holiday on account of death of the late Chief Minister Gundu Rao and that was the reason the petitioner could not file the application on 24.8.1993. Hence, he submits that the application was presented within time and it cannot be treated as belated. The confirmation of sale was made pending the application to set aside the sale and the said procedure is certainly illegal. It is essential to dispose of the application for setting aside the sale before confirmation of sale. There is yet another circumstance also to be noticed. Pending these proceedings against an interim order an appeal was filed by the 5th respondent before this court as Writ appeal No.691/99 which was disposed of on the offer made by the 6th respondent herein to the effect that he is agreeable to have the sale set aside and also the order of confirmation of sale and for remittal of the matter to the 1st respondent herein for fresh consideration of the application of the petitioner made under rule 38. This is what is stated in the order. “Regarding offer made by the learned counsel for the appellate that he is agreeable for setting aside the order of confirmation of sale and for remitting the matter to the 2nd respondent for setting aside the sale, it is submitted by the learned counsel for the 1st respondent that the said offer is to be made before the single Judge before whom the writ petition is pending and it is for the said court to consider the same and pass appropriate orders after hearing both sides.” In these circumstances, I feel that the impugned order has to be set aside. I set aside the confirmation of the sale as also the dismissal of the application for setting aside the sale. The matter has to be remitted to the 2nd respondent for consideration of the appeal, I do so. All contentions urged by the parties are left open. The matter shall be decided within 6 weeks from the date of receipt of the copy of this order. The writ petition stands disposed of as above.” 13. The matter has to be remitted to the 2nd respondent for consideration of the appeal, I do so. All contentions urged by the parties are left open. The matter shall be decided within 6 weeks from the date of receipt of the copy of this order. The writ petition stands disposed of as above.” 13. It is on such remand and after examining the matter afresh and in the light of considerable amount of additional pleadings placed by the parities before the recovery officer and purporting to examine the authorities relied upon by the learned counsel appearing for the parties, the recovery officer passed the order dated 30.10.2000 rejecting the application and confirming the auction (copy at Annexure-A). 14. The application was rejected for the reason that there appeared to be no truth or tenability in the grounds urged in support of the application under rule 38(5) of the rules, that the application was a belated one beyond the period of limitation; that the allegation of the Judgment Debtor that the bid offered by his son has not been examined was not true as said person had withdrawn form the bid and therefore it is not proper to say that the auction sale is irregular or improper; that the applicant keeping quiet without raising any objection over since the attachment of the property and not having availed the remedies under the rules for setting aside the sale such as filing an application under rule 38(4) of the rules nor having appealed against the Award etc., and the auction sale having been confirmed in terms of the order dated 5.12.1994 and on the basis of the same the sale certificate having been issued on 21.4.1995 and having delivered possession of the property along with the building in favour of the auction purchasers and the auction purchasers having got possession of the property even as on 29.4.1995 and being in possession of the same and having regard to the authorities governing such situations, there being no justification to disturb such state of affairs and the auction sale having already been confirmed and there being no scope for setting aside a sale which has already been confirmed, the application even on remand by the High Court in terms of the order dated 24.3.1999 passed in WP No.35320 of 1994 is only to be rejected and accordingly the order is being passed. 15. 15. Questioning this order, yet again the writ petitioner preferred revision under section 108 of the Act before the State Government in revision petition No.CMW/15/CAP/2001 (Copy at Annexure-J). The revision petition which had once been dismissed for default and had been restored through the intervention of this court in another writ petition came to be dismissed in the second round on merits in terms of the order dated 8.2.2002 (copy at Annexure-J) affirming the view taken by the recovery officer. The revision authority also found that there is no scope for interference on the hyper technical ground of auction sale having been confirmed within the period of thirty days of the auction sale which is a period allowed for filing an appeal or other remedies. 16. The revisional authority also went by the record to say that the procedure had been fully complied and also found that the revision petitioner having not deposited the sale amount for which the property had been sold in public auction, the application was not tenable and was only to be rejected. 1. 17. This order was yet again made subject matter of writ petition in WP No.19816 of 2002. 1. 17. This order was yet again made subject matter of writ petition in WP No.19816 of 2002. This court after issue of notice to the respondents among whom figured auction purchasers yet again allowed the writ petition in terms of the order dated 27.3.2003 observing, inter alia, that the revisional authority had gone astray by examining the application in the light of the provisions of rule 38(4) of the rules which provision required the deposit of the sale price with 5% solatium etc., that the revisional authority had proceeded on the very wrong understanding of the scope of an application under rule 38(5) of the rules; that the requirement of application under rule 38(4) of the rules had been imposed on the applicant for examining the validity of the order passed by the recovery officer rejecting an application under rule 38(5) of the rules; that the authority before whom the application had been filed had mainly rejected the application on the ground of application being beyond time and further as the auction sale had already been confirmed and possession had been handed over, no scope for allowing the application under rule 38(5) of the rules, that the revisional authority had not bestowed its attention to such aspects based on which the recovery officer had rejected the application; that it was the requirement on the part of the revisional authority to show awareness of the actual order passed by the recovery officer and to test it on the touchstone of the 38(5) of the rules, that the revision petition is also not being examine on the touchstone of auction sale suffering form material irregularity or mistake or fraud in publishing or conducting the sale etc., which are the relevant aspects which are to be borne in mind by the revisional authority and remanded the matter to the revisional authority for such reasons set aside the order of the revision authority for fresh consideration and permitting the legal heirs of the writ petitioner – Gopalakrishna Bhat to come on record in accordance with law as during the pendency of the writ petition before the court, the writ petitioner had died and his legal heirs had come on record. 18. It is on such remand, the revisional authority has passed the present order dated 20.4.2005 (copy at Annexure-B) yet again dismissing the revision petition through an elaborate detailed order. 19. 18. It is on such remand, the revisional authority has passed the present order dated 20.4.2005 (copy at Annexure-B) yet again dismissing the revision petition through an elaborate detailed order. 19. The grounds urged in support of the petition in the present round of writ litigation are that the revisional authority has not adverted to the various contentions urged on behalf of the petitioner, that in fact the matter was not even heard before the second respondent, as on all occasions when the matter was listed, it was adjourned for one reason or the other, as is evident in the copy of the order sheet produced at Annexure-L to the writ petition; that in fact the respondents were not even present and no arguments were addressed on their behalf; that the revisional authority has not examined the correctness or otherwise of the order passed by the recovery officer, in the light of the deficiencies pointed out in the order of the recovery officer and as urged in the revision petition; that in fact the revisional authority had given an impression that the matter when it was reserved for orders 19-1-2005, in the wake of the respondents having not appeared and not having represented, the revision was only to be allowed; that it was never to the knowledge of the petitioner or her counsel to various grounds attributed to the counsel on behalf of the respondents 6 to 8; that there was not even an opportunity to the petitioner and her counsel to respond to the contentions said to be formulated on the basis of the written arguments said to have been filed on behalf of the respondents 6 to 8 on 4-12-2003; that while there was no sitting of the court on 4-12-2003, while the order sheet indicated that the advocate for the petitioner present and written statement filed, no copy was furnished to the advocate for the petitioner; that a contentious contention has been put forth and written arguments filed on behalf of the respondents 6 to 7, particularly to contend that 8th respondent had not been made a party earlier in the proceedings which was contrary to the record; that the revisional authority had not examined the effect of the petitioner having deposited the entire award amount even in terms of the directions issued by this court while WP.No.35320 of 1994 was pending; that no valid demand notice was issued before the auctioning of the property; that in fact the respondent-authorities have acted inconsistently while forwarding the demand notices to the borrower and while the communication dated 3-5-1995 (copy at Annexure-M to the writ petition) had been sent to the borrower at his residential address viz., Sri P. Gopalakrishna Bhat, Archak of Somanatheswhara temple, Belthangadi, the demand notice, sale proclamation notice etc., had all been admittedly forwarded to the earlier address where the borrower was not living viz., addressed to Sri P. Gopalakrishna Bhat, Bhadagupet, Udupi district and it had in fact been returned to the bank unserved etc.,; that there was violation of Rule 34 and Rule 38(2)(a) of the Rules in not putting the judgment debtor o notice, before taking the coercive action for auction sale of the property and on such grounds, the writ petition has to be allowed. 20. On issue of notices, the respondents entered appearance through their counsel. The statutory respondents – respondents 1 to 4 – are represented by Sri H.K. Basavaraj, learned government pleader, who has also produced before the court the records of the recovery officer and the sale officer. The fifth respondent – bank is represented by Sri S.K. Acharya and the respondents 6 to 8, claiming to act in unison as auction purchasers are represented by Sri S.P. Shankar, learned senior counsel for M/s. SPS Associates. 21. Statement of objections has been filed on behalf of the respondents 6 to 8 and it is urged that the writ petition is not tenable for the reason that the writ petitioner constitutes only one of the legal heirs of the deceased judgment debtor; that as the writ petitioner hardly represents 1/10th share in the subject property, which belongings to her late husband and the other legal heirs not joining, the present petition for questioning the legality of either the auction sale or the order of the revisional authority, this writ petition should not be entertained, being by the petitioner, who has only an insignificant interest in the subject matter. 22. It is also urged that the dispute regarding the facts having been sought to be raised in the writ petition, such aspects cannot be examined within the scope of a writ petition under Article 227 of the Constitution of India. 22. It is also urged that the dispute regarding the facts having been sought to be raised in the writ petition, such aspects cannot be examined within the scope of a writ petition under Article 227 of the Constitution of India. It is contended that the award against the judgment debtor was just and proper; that the award became final, as the judgment debtor had accepted the same during his life time and had not filed any appeal; that the bank was justified in bringing the property of late Gopalakrishna Bhat to sale for recovery of the award amount; that the award being not contested, there cannot be any examination f the contents of the award or the liability of the judgment debtor in an execution proceeding; that though the judgment debtor was aware of the sale proceeding, he had not raised his objection to the same and that he had acquiesced with the matter; that sufficient opportunity had been given to the judgment debtor, inasmuch as the service of notice about the auction sale had been issued 30 days prior to the date of proposed auction sale; that one of the sons of the judgment debtor had participated in the public auction only with a view to avoid sale and to save the property and while that moves the lack of bona fides on the part of the petitioner, also proves that the judgment debtor was aware of the sale proceedings and the son of the judgment debtor indulged in bidding for the property and the highest bid was offered by the representative of respondents 6 to 8; that the auction purchaser had deposited the requisite amount within the stipulated time as per the statutory provision and the balance was also paid within the stipulated time; that the auction purchaser had deposited the entire amount of Rs.3.95 lakh within the stipulated time and had acted in response to the directions of the sale officer and the recovery officer and therefore the position of sale of the property has become irreversible, as the bid amount has been applied for discharging the outstanding decretal amount by the late Gopalakrishna Bhat; that the application filed beyond the 30 days time was not tenable in law; that the application at the instance of the persons like the judgment debtor under Rule 38(5)(a) of the Rules was not tenable; that the person like the petitioner could have invoked only the provision of Rule 38(4)(a) of the Rules by depositing the sale price with 5% solatium and could not have recourse under Rule 38(5)(a) of the Rules; that the judgment debtor having not filed any application under Rule 38(4), an application under Rule 38(5) was not maintainable; that the amount realized by sale of property has already been applied not only for the discharge of the decree in favour of the bank against the judgment debtor in the very execution case, but also for discharging the other debts of the judgment debtor, which were outstanding against other decrees or awards suffered by the judgment debtor, that the auction purchaser who had been put in possession of the property in the year 1994 itself, had demolished the building and had secured the premise by putting up a compound, that the auction purchaser and his son intend to make use of the property as an annex to the adjoining temple, of which the seventh respondent’s son the eighth respondent, is the dharmadhikari of the temple; that the auction purchaser had effected substantial improvements in the property by investing money; that the property has been substantially renovated and has virtually undergone major changes and also the utility of the same in the subsequent years; that the sixth respondent, who bid the auction sale, was only an employee of the respondents 7 and 8 and had participated in the bid on their behalf, such participation by a representative is not any material irregularity nor has it resulted in any fraud, as alleged in the writ petition and at any rate such aspects cannot be examined in a petition under Article 227 of the Constitution of India’ that the only avenue that was open to the judgment debtor was by seeking relief under Rule 38(4)(a). which has not been done by the judgment debtor during his life time, and the present attempt continued by one of the legal heirs is not productive; that such misguided persuasion of the remedies by the legal heir of the judgment debtor cannot be to the detriment of the bona fide auction purchaser; that the scope of examination of an application under Rule 38(5) is akin to the examination of an application filed under Order XXI Rules 89 and Rule 90 CPC, which are analogous provisions and innumerable authorities of the Apex court as well as our high court viz., AIR 1971 SC 2337 , AIR 1974 SC 1331 , AIR 1981 SC 693 , AIR 1991 SC 770 , AIR 1993 (4) Supp SCC 659, AIR 1994 (1) SCC 131 and ILR 1987 KAR 2559, as mentioned in para – 13 of the statement of objections, which categorically laid down that an auction sale once concluded should not be interfered with or set aside, as a mater of course, until and unless, it is established to the hilt that the sale is beseeched with material irregularities and resulted in substantial injury to the judgment debtor; that the writ petition has been filed belatedly and in the light of such development and legal position, the writ petition should be dismissed. 23. It is in the light of such pleadings, record and contentions, arguments are addressed by the learned counsel for the parties. 24. I have heard Sri K Prasad Hegde, learned counsel for the petitioner, Sri H K Basavaraj, learned government pleader, appearing for respondents 1 to 4, Sri S K Acharya, learned counsel for the fifth respondent-bank and Sri S P Shankar, learned senior counsel for respondent 6 to 8, who claim to collectively represent the interest of the auction purchaser. 25. I have heard Sri K Prasad Hegde, learned counsel for the petitioner, Sri H K Basavaraj, learned government pleader, appearing for respondents 1 to 4, Sri S K Acharya, learned counsel for the fifth respondent-bank and Sri S P Shankar, learned senior counsel for respondent 6 to 8, who claim to collectively represent the interest of the auction purchaser. 25. Submission of Sri K Prasad Hegde, learned counsel for the petitioner while proceeds on the contentions as noticed above in the pleadings, it is further submitted that the auction sale is tainted with material irregularities, firstly, the judgment debtor being not put on notice demanding either the outstanding amount as per the award or for apprising the judgment debtor about the proposed auction sale; that the record does not indicate that the judgment debtor having ever been served in person about the either the demand notice or of the proposed proclamation and the auction sale, but on the other hand, it clearly indicates that the notice had all been sent to the address where the judgment debtor was not residing; that the notices had been sent to Sri P Gopalakrishna Bhat son of P Ramachandra Bhat, House No. 8-2-62, Kalinga Rao lane, Badagupet, Udupi, whereas even to the knowledge of the bank, the said Gopalakrishna Bhat was residing as Archak, Somanatheshwara Temple, Belthangadi, as is evident by the subsequent communication dated 3-5-1995 [copy at Annexure-M to the writ petition], though has emanated from the bank itself, it only goes to show that the judgment debtor had not been put on actual notice of the entire proceedings, as is required in terms of Rule 38(2)(a),38(2)(c) and 38(2)(d) of the Rules. 26. 26. It is also submitted that the public notice for effecting the auction sale was published in the Udayavani Kannada daily in its publication dated 20-7-1993, whereas the auction sale was proposed to be conducted on 23-7-1993 i.e. within three days from the said publication and interestingly a corrigendum was also carried out on 22-7-1993; that the publication did not even give any breathing time to the judgment debtor to make good the award amount and to save the property; that non-providing of a proper opportunity to the judgment debtor to avoid the public auction sale by depositing the amount is totally detriment to the interest of the judgment debtor and because of the hurried and belated action taken by the bank in total violation of the Rule 38(2)(d), which enjoins not only publication of proclamation of sale 30 days before the sale taking place, but further enjoins notice to be given to the judgment debtor of the proclamation and the proposed auction sale, indicating the time and place of the sale; that it also violates the description of the property, which also constitutes material irregularity, particularly violative of the requirement of Rule 38(2)(a) as well as violation of Rule 38(2)(c) of the Rules, as even the attachment of the property had neither been personally served on the judgment debtor nor affixed on a conspicuous place of the property not at the place where the judgment debtor resided. Submission is that the judgment debtor was neither served at the place where the property proposed for sale was located nor at the place where he was actually residing and it is in violation of Rule 38(2)(a), (b), (c), (d) of the Rule and deprival of the opportunity to the judgment debtor to make good the demanded amount and constitutes material irregularity in the conduct of the sale. 27. 27. Learned counsel for the petitioner has also contended that the record of the sale officer has been manipulated to the detriment of the petitioner, that while one of the bidders was the son of the judgment debtor and had bid the highest amount of Rs 4.00 lakh, the record does not indicate this, but has been manipulated to indicate that it was only the sixth respondent, who had offered the highest bid of Rs 3.95 lakh and such manipulation constitutes a definite act of fraud on the part of the sale officer to cause prejudice to the judgment debtor and to benefit the auction purchaser and such manipulation is very obvious even on a perusal of the records, particularly the date indicated in the form No 8, where the date and the month are overwritten, so also in the form No 9, indicating the date of the auction sale wherein also there is overwriting of the date. 28. It is submitted by the learned counsel for the petitioner that this coupled with the non-mentioning of the highest bid amount by the son of the judgment debtor by name Sriramana in the bid sheet maintained by the sale officer, also is a circumstance to conclude that the records were manipulated and not to be accepted at their face value. Interestingly, even a report of the sale officer of the procedure of sale contained at page-5 of the records of the sale officer, does not bear any date, but appears to have been recorded on a Xerox copy of the form and not on the original. 29. Interestingly, even a report of the sale officer of the procedure of sale contained at page-5 of the records of the sale officer, does not bear any date, but appears to have been recorded on a Xerox copy of the form and not on the original. 29. Sri Hegde, learned counsel for the petitioner has also submitted by drawing attention to Annexure-A order passed by the recovery officer on the application under Rule 38(5) of the Rules, that while the order does not advert to any of the grounds urged in support of the application for setting aside the sale, it only mentions the findings which were not open to the recovery officer to examine further, such as an application being belated, which had been concluded by the remand order passed by this court when the matter was remanded to the recovery officer for reconsideration of the application under Rule 38(5) as per the order of this court dated 24-3-1999 passed in WP No 35320 of 1995 and further proceeded to reject the application, as the sale had already been confirmed on 5-12-1994, whereas the confirmation of sale had been expressly set aside by this court in the order passed in WP No 35320 of 1994. 30. Learned counsel for the petitioner has placed reliance on the following decisions of our high court as well as the Supreme Court in support of his contentions: 1. Shantharam Vajrappa Angadi Vs State Of Karnataka [1989 (1) KLJ 125, to contend that the recovery officer was wrong in rejecting the application under Rule 38(5) of the Rules only for the reason that the sale is complete and confirmation as per the earlier order, which is both factually and legally incorrect. 2. Shantidevi Vs State Of Up [ (1997) 8 SCC 22 ], to contend that the violation or Rule 38 (2)(a) of the Rules is akin to the requirement of Rule 285 of the Uttarpradesh Zamindari Abolition and Land Reforms Rules, 1952, stipulating similar conditions to precede an auction sale, constitute material irregularity and therefore the auction sale is not sustainable. 3. Reliance is also placed on the decision of the Madras High Court in the case of Pandurangam Vs. 3. Reliance is also placed on the decision of the Madras High Court in the case of Pandurangam Vs. Dasu Reddy [AIR 1973 Madras 107] to contend that non-issue of notice on the judgment debtor for payment of the decrial amount constitutes material irregularity leading for setting aside of a sale on an application under order 21 rule 90 CPC even when the sale is confirmed, sale certificate issued and auction purchaser had been put in possession of the property. 31. While Sri H K Basavraj, the learned government pleader appearing for the statutory respondents, has supported the orders and submitted that the recovery officer as well as the reversionary authority have passed well considered orders and there is no need for interference in a writ petition under Article 227 of the Constitution of India and no ground is made out for interference and the writ petition should be dismissed, Sri SK Acharya, learned counsel for the respondent-bank, who also supports the orders, submits that the bank has ensured to secure compliance with all procedural requirements; that there is no procedural violation, as is sought to be made out on the part of the petitioner; that the bank in fact had conducted the sale in a manner so as to ensure that it fetched the maximum price for the property in question and there is absolutely no injury, much less a substantial injury, that has been caused to the judgment debtor, as the sale price is much more than the estimated price, which value had been obtained from the office of the sub-registrar at Udupi; that whereas the valuation so obtained was around Rs 350 lakh, the actual price for which the property was sold is Rs 3.95 lakh in favour of respondents 6 to 8; that this price was fixed by the bank who had enabled the son of the judgment debtor to participate in the bid; that it is only because of the participation of the son of petitioner the auction sale fetched such a high amount; that there is no injury much less any substantial injury caused by the auction sale and there is no ground for interference. 32. 32. It is also submitted by learned counsel for the respondent-bank that the sale amount has been applied by the bank for the discharge of the decree against the petitioner in respect of another garnishee order issued by the civil court at Udupi as against the judgment debtor in two execution cases and therefore urges for dismissal of the writ petition. 33. Sri S P Shankar, learned senior counsel appearing for the auction purchaser-respondent 6 to 8, has made elaborate submissions on the lines urged in the statement of objections and has raised a preliminary objection that the writ petition at the instance of one of the legal heirs of the judgment debtor alone is not tenable. 34. It is also contended by the learned senior counsel that the auction sale has been conducted in conformity with the statutory provisions; that the overwriting of the dates in the sale proclamation and the notice issued to the petitioner, even if it is to be found so, cannot by itself constitute a material irregularity or a ground for setting aside the sale; that nothing is made out to show that the auction sale has affected the interest of the judgment debtor; that not much importance is to be given to such correction of the record. 35. 35. It is vehemently urged on the authority of several judgments of the Supreme Court that an application under Rule 38(5) of the Rules being akin to an application under Order XXI Rule 90 CPC, the principles evolved and the rulings given in the context of the understanding and the interpretation of the provisions by Order XXI Rule 90 of CPC automatically apply to the understanding and interpretation of Rule 38(5) of the Rules and on such authority, it cannot be disputed that an auction sale once conducted, confirmed and sale certificate issued will not be interfered with or set aside until and unless the applicant who invokes the provisions of Order XXI Rule 90 has fully convinced the court about a material irregularity having tainted the auction sale procedure and it, has, as a consequence, resulted in substantial injury to the judgment debtor; that on facts, no grounds is made out either to show that there is any material irregularity in the auction sale nor any finding recorded either by the recovery officer before whom an application under Rule 38(5) lies and the revisional authority, who had examined the matter elaborately about the existence of a substantial injury to the auction sale that has occurred to the judgment debtor; that in a matter of this nature, when there was no scope at all to allow the application under Rule 38(5) of the Rules; that the scope to examine such orders in a petition under Article 227 of the Constitution of India is still narrower; that it is on authority well established that in a petition under Article 227 of the Constitution of India, such matters can neither be examined nor can be interfered, particularly, as the examination involved examination of disputed facts etc. 36. In support of such submissions, Sri S P Shankar, learned senior counsel appearing for respondents 6 to 8, has placed the following decisions: 1. Janak Raj Vs. Gurdilal Singh [ AIR 1967 SC 608 – Para-27]; 2. Radhy Shyam Vs. Shyam Behari Singh [ AIR 1971 SC 2337 ]; 3. Kadiyala Rama Rao Vs. Gutala Kahna Rao [ (2000) 3 SCC 87 , to contend that inadequacy of sale price cannot be raised before the Supreme Court for the first time and so also before this court, based on the decision of the Supreme Court in the case of Janatha Textiles Vs. Kadiyala Rama Rao Vs. Gutala Kahna Rao [ (2000) 3 SCC 87 , to contend that inadequacy of sale price cannot be raised before the Supreme Court for the first time and so also before this court, based on the decision of the Supreme Court in the case of Janatha Textiles Vs. Recovery Officer [Civil Appeal No 6539 of 2003, Decided on 16-5-2008], which, it is submitted, comprehensively covers all earlier decided cases on the scope of interference in an auction sale that the auction sale once concluded cannot be interfered on hyper technical grounds; that the action sale cannot be interfered at all unless grounds as are provided for in the statutory provisions, are fully made out; that in terms of the ratio of the decision in Kadiyala Rama Rao [supra], the grounds that can be urged in support of the application for setting aside the auction sale should only be as provided for statutorily and not by offering each and every ground; that as the petitioner’s application had not made good the grounds as is provided under Rule 38(5) of the Rules and no other ground can be urged in support of the present writ petition also. 37. It is also further submitted by the learned senior counsel that as to what constitutes material irregularity has been well understood and interpreted on authority and in support has relied upon the decision of this high court in the case K.Shankar Vs. 37. It is also further submitted by the learned senior counsel that as to what constitutes material irregularity has been well understood and interpreted on authority and in support has relied upon the decision of this high court in the case K.Shankar Vs. Syndicate Bank [ILR 1979 KAR 1326] to contend that on facts, no ground of material irregularity or fraud has been either made out in the application to satisfy the requirement of Rule 38(5) of the rules nor before any of the authorities including this court; that assuming such grounds are urged, they have not been made good by adducing commensurate evidence and the present writ petition being by only one of the legal heirs of the judgment debtor and other legal heirs having not joined, the examination at the instance of one of the legal heirs particularly within the narrow province of undertaken; that the order passed by the revisional authority on 20-4-2005 which is made subject matter of writ of certiorari before this court, is an elaborate and well considered order, which meets all the requirements of law, and therefore urges that the present writ petition should be dismissed as one not warranting interference in exercise of jurisdiction under Article 227 of the Constitution of India. 38. I have perused the pleadings, impugned orders as also the records made available by the learned government pleader and examined the submissions made at the Bar. 39. The examination if at all in the writ petition even within the scope of Article 227 of the Constitution of India can only be within scope of Rule 38(5) (a) of the rules, which reads as under: 38. 39. The examination if at all in the writ petition even within the scope of Article 227 of the Constitution of India can only be within scope of Rule 38(5) (a) of the rules, which reads as under: 38. Attachment and sale of immovable property: (1) xxx (5)(a) At any time within 30 days from the date of the sale of an immovable property, the decree-holder or any person entitled to share in a rateable distribution of the assets or whose interests are affected by the sale, may apply to the Recovery Officer to set aside the sale on the ground of a material irregularity or mistake or fraud in publishing or conducting it: Provided that no sale shall be set aside on the ground of irregularity or mistake or fraud unless the said Recovery Officer is satisfied that the applicant has sustained substantial injury by reason of such irregularity, mistake or fraud: Provided further where the purchaser is Government the scale will be confirmed,- a) after the expiration of sixty days where no application to have sale set aside is made under sub-rule (4) or b) after the expiration of ninety days where an application to set aside under sub-rule (4) is made but the balance of the amount due under the decree is not deposited within ninety days from the date of sale. (b) If the application be allowed, the said Recovery Officer shall set aside the sale and may direct a fresh one. 40. The examination of the application under Rule 38(5)(a) of the Rules in turn involves the examination of the proceedings leading to the action sale, which are regulated by Rules 38(1) and (2)(a), (b), (c), (d), (e), (f), (g), (h), (i), (j), etc., of the Rules, which constitute the touchstone for examination of an application under Rule 38(5)(a) of the Rules. 41. A provision like Rule 38(5)(a) of the Rules, is even, as contended by the learned counsel for the respondents 6 to 8, is akin to the provisions of Order XXI Rule 90 CPC but is not exactly in pari materia with the provisions of Order XXI Rule 90 CPC, which reads as under: 90. Application to set aside sale on ground of irregularity or fraud. Application to set aside sale on ground of irregularity or fraud. (1) Where any immovable property has been sold in execution of a decree, the decree holder, or the purchaser, or any other person entitled to share in a reteable distribution of assets, or whose interests are affected by the sale, may apply to the court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it. (2) No sale shall be set aside on the ground of irregularity or fraud in publishing or conducting it unless, upon the facts proved, the court is satisfied that the application has sustained substantial injury by reason of such irregularity or fraud. (3) No application to set aside a sale under this rule shall be entertained upon any ground which the application could have taken on or before the date on which the proclamation of sale was drawn up. Explanation: The mere absence of, or defect in, attachment of the property sold not, by itself, be a ground for setting aside a sale under this rule. 42. While the principles that have emerged in the context of the examination of the provisions of Order XXI Rule 90 CPC and the decisions rendered in such context can definitely constitute the guidelines for the examination of the scope of an application under Rule 38(5)(a) of the Rules, that by itself does not conclude the matter, as there are certain variations in the two statutory provisions. 43. It is true that even an application under Rule 38(5) of the Rules is one which is required to be examined on the touchstone of the particular provision and in the light of the first proviso providing that the sale shall not be set aside on the ground of irregularity, mistake or fraud, unless the recovery officer is satisfied that the applicant has sustained substantial injury by reason of such irregularity, mistake or fraud. The distinguishing features are a ground of mistake is also a ground provided for in Rule 38 (5)(a) of the Rules. The distinguishing features are a ground of mistake is also a ground provided for in Rule 38 (5)(a) of the Rules. The other distinguishing feature which is not by any means to be ignored is that while the proceedings under order XXI Rule 90 CPC, the proceedings takes place before a civil court and presided over by a judge trained in judicial methods and well versed in adjudication methods, an application under Rule 38(5)(a) of the Rules is before a recovery officer – in the present case, an officer an Assistant Registrar of the department of cooperation – and the degree of examination in respect of such action i.e. scrutiny in respect of such orders, cannot be the same. The extent of scrutiny even in exercise of the power of judicial review of administrative action is inevitably of a greater degree and much deeper while examining an action and orders passed on an application under Rule 38(5)(a) of the Rules in comparison to the scope of examination of orders on an application under Order XXI Rule 90 CPC. 44. The ground of material irregularity in fact does constitute one of the grounds for setting aside the sale, if it has resulted in substantial injury caused on such material irregularity. 45. The interpretation and understanding of what constitute a material irregularity has been subject matter of a large number of decisions, both before the high courts and the supreme court, and some of them have been cited in the present case also. While that can be an understanding of general nature, any phrase and any word occurring in any statutory provision is required to be examined in the context in which it occurs and keeping in mind the purpose and object of the legislative provision. 46. An application under Rule 38(5) of the Rules is one that can be filed by a person who claims that his interest is affected by the sale and if the judgment debtor claims that he is affected by the sale and that it is to his detriment, the judgment debtor can certainly maintain an application under Rule 38(5) of the Rules. 47. Now, an examination of an application under Rule 38(5) of the Rules made by a person claiming to be affected by the auction sale, is an examination from that context and for the purpose of setting aside the auction sale. 47. Now, an examination of an application under Rule 38(5) of the Rules made by a person claiming to be affected by the auction sale, is an examination from that context and for the purpose of setting aside the auction sale. The object of the statutory provision is to provide a degree of safeguard to the judgment debtor when an auction sale is tainted by non-adherence to rules and depriving the safeguard to set aside the auction sale and not anything else. If the sale is trained by material irregularity leading to substantial injury to the applicant. 48. The examination should proceed from this angle and not from the angle of what possible injury or affectation it may result in favour of an auction purchaser. Unfortunately, a perusal of the impugned orders in the present case, both by the recovery officer and the revisional authority, indicates that the examination of the application under Rule 38(5)(a) of the Rules has proceeded mainly having regard to the interest of the action purchaser as though the provision is one to sustain the interest of the auction purchaser and not one to subserve the interest of an affected person who has filed the application for setting aside the sale. 49. While material irregularities is one of the essential requirements without which an applicant does not proceed and the proviso definitely governs the main provision that material irregularity should also have resulted in substantial injury to the applicant the proviso cannot be elevated to such a level as to defeat the purpose and object main provision itself. 50. A proviso cannot be pressed into service always to reject an application under Rule 38(5) of the Rules, as it can defeat the very purpose of the statutory provision. In this background, to my understanding, the interpretation of the phrase ‘material irregularity’ under Rule 38(5) of the Rules should be in the background of such statutory provision and having regard to the purpose for which the statutory provision is made. An irregularity to constitute a material irregularity, it should be an irregularity of such nature that the alleged irregularity can defeat the very object and purpose of the statutory provisions. In other orders, the irregularity becomes intolerable when permitting the irregularity to stand virtually renders nugatory the very statutory provisions. 51. An irregularity to constitute a material irregularity, it should be an irregularity of such nature that the alleged irregularity can defeat the very object and purpose of the statutory provisions. In other orders, the irregularity becomes intolerable when permitting the irregularity to stand virtually renders nugatory the very statutory provisions. 51. The argument advanced on behalf of the auction purchaser is that the petitioner has neither made out a material irregularity nor a substantial irregularity. The question is whether it is so? Even within the scope and meaning of a petition under Article 227 of the Constitution of India, if an order results in blatant violation of the statuary provisions, it is the duty of this court to set right the same, even within the scope of supervisory role, akin to revisional jurisdiction, though the scrutiny may not be as wide as in the appellate jurisdiction or revisional jurisdiction. 52. The examination is essentially an examination of the statutory exercise of the power and the functioning of the statuary authorities while exercising such statutory power i.e. one of judicial review of administrative action. If the statutory functionary has not shown awareness to the provision or has ignored the relevant grounds for examination of an application under Rule 38(5)(a) of the Rules, the order is not sustainable. 53. A perusal of the order passed by the recovery officer indicates that the recovery officer is only obsessed with the foregone conclusion that the application is barred by limitation and that the auction sale has already been confirmed, even when this court in the earlier round of writ litigation, as noticed above, had not only set aside the confirmation of auction sale and the sale certificate, but also had directed the authority to examine the application on its merits and not on the question of limitation etc. 54. The examination by the authority while proceed on such irrelevant premise and even irrespect of the issues already concluded by the order of this court, does not show awareness to the grounds urged by the applicant in the application but in the context of the interest that can subserve the auction purchaser! 55. Examination fails. 54. The examination by the authority while proceed on such irrelevant premise and even irrespect of the issues already concluded by the order of this court, does not show awareness to the grounds urged by the applicant in the application but in the context of the interest that can subserve the auction purchaser! 55. Examination fails. The revisional order [copy at Annexure-B to the writ petition] focuses on sustaining the order passed by the recovery officer rather than examining the same in the context of the grounds urged either before the recovery officer or before the revisional authority. The length of the order is not the criterion, but the contents of the order. An order may be an elaborate one, but if relevant considerations are not examined, the order becomes suspect and in fact can be characterized as a nonspeaking order. 56. Ultimately, an examination of an application under Rule 38(5) of the Rules has to be on the grounds urged in the application purchaser. While it is true that the action purchaser may be entitled to participate in the proceedings and to focus attention of the authorities to the record and to the facts to keep the authority to show awareness, the role of the auction purchaser in a proceeding of this nature cannot be elevated to the status of an adversary in an adversarial litigation. 57. In fact, there is no lis between a judgment debtor and the objector, in the sense of an adversarial litigation, as the relief claimed in an application under Rule 38(5) of the Rules is not directed or oriented against the action purchaser, but against the conduct of the sale proceedings by the sale on the touchstone of the statutory provision of Rule 38. The auction purchaser does not constitute an adversary for the applicant. The impact on the auction purchaser is not the primary consideration at all. The consequences follow once an application under Rule 38(5) of the Rules is made out in terms of the grounds mentioned therein. 58. The auction purchaser does not constitute an adversary for the applicant. The impact on the auction purchaser is not the primary consideration at all. The consequences follow once an application under Rule 38(5) of the Rules is made out in terms of the grounds mentioned therein. 58. Sri S P Shankar, learned senior counsel appearing for respondents 6 to 8, being conscious of this position, also submitted that if for any reason it is to be found that the orders are not sustainable, the matter should only be remanded to the recovery officer for fresh examination, particularly as the auction sale cannot be set aside unless the recovery officer has recorded his satisfaction about the existence of a substantial injury suffered by the applicant attributable to the material irregularity. 59. While, it is true that it is the function of the statutory authority exercising power under Rule 38(5) of the Rules to be satisfied about such possibility and the existence of substantial injury, a perusal of the record in the present case, indicate there are many glaring irregularities which definitely affects the interest of the judgment debtor and vitiates the sale proceedings. 60. It is noticed in the record and as contended by the learned counsel for the petitioner that there are overwriting and corrections in the date mentioned in the sale proclamation notice, demand notice and auction notice etc. 61. These apart, what is urged on behalf of the petitioner is to the effect that the notice to the judgment debtor was not addressed to the place where he was residing but to an address where the property was located i.e. door No 8-2-63, Badagupet, Udupi and therefore was no service and that deprived a proper opportunity to the judgment debtor to save the property assumes significance, as the whole object of such service is to enable the judgment debtor to have an opportunity to repay the amount and to save the property. If that purpose is defeated by not adhering to the requirement of the rule, that definitely constitute a material irregularity. This is obvious on a perusal of the records of the sale officer at page 56 of the record. 62. If that purpose is defeated by not adhering to the requirement of the rule, that definitely constitute a material irregularity. This is obvious on a perusal of the records of the sale officer at page 56 of the record. 62. Further, it is noticed from the execution file No 106/93-94 and particularly the report of the sale officer to the assistant registrar of cooperative societies or the tax officer, is about the auction sale of the not only 5 cents of garden land but also a building therein. The report for the first time mentioned the sale of a building, whereas at no point of time, there was ever any proposal to put to auction the building not was it indicated anywhere proposing to sell the garden land comprised with a building. This gives way to two types of irregularities viz., that the auction sale of 5 cents of garden land getting vitiated for not mentioning the proper description of the property, as it obviously did not mention about a building, and the other violation will be the sale of the building without any procedural requirement of putting the judgment debtor on notice, putting the possibility of the sale of such building also and without any safeguard. While the former could diminish the price value of the sale, the latter denies the safeguards provided under the Rules for putting a property of the judgment debtor to public action sale before it is actually done. 63. While the former could diminish the price value of the sale, the latter denies the safeguards provided under the Rules for putting a property of the judgment debtor to public action sale before it is actually done. 63. One another glaring irregularity is that while the auction sale of the property at door No 8-2-63, Kalingarao Lane, Badagupet, Udupi is for satisfying the award in Ex Case No 106/93-94 in terms of the award No 596/92-93, the officer of the bank writes to the bank writes to the sales officer/recovery officer that the proceeds of the sale has to be adjusted even for satisfying another award obtained by the bank against the very judgment debtor, which was due in Ex Case No 21/92-93 for execution of the award in No 482/91-92 and for outstanding amount of Rs 91, 866/-This again constitutes a material irregularity, for the reason that the property in question is sought to be put to auction sale for satisfaction of an award not published and not in respect of which the judgment debtor though not being put on notice, but has sought to be inserted only on the date of auction sale, as is evident at page 33 of the record of the sale officer. While the argument of Sri K Prasad Hedge, learned counsel for the petitioner is that the record is tainted because of the fraud and collusion between the sale officer and the auction purchaser cannot be taken to have been made good either on the basis of argument or on any other material, what is obvious from the record itself is there have been glaring irregularities in the conduct of the auction sale, obvious on the face of the record and the argument that there is some manipulation of the record, particularly in the wake of the corrections of the dates as noticed in the record, cannot be totally overlooked. On a perusal of the provisions of Rule 38, it is clear that a sale of an immovable property for realizing the award amount in favour of the decree holder as against the judgment debtor, it has to go through three stages unless the decree is a mortgage decree when the stage of attachment before sale is avoided. 64. The first stage involves the satisfaction on the part of the Recovery Officer on an application by the decree holder in the prescribed format. 64. The first stage involves the satisfaction on the part of the Recovery Officer on an application by the decree holder in the prescribed format. Rule 34(1) and 34(2) mandates this Sub-rule 3 of rule 34, contemplates an enquiry in this regard by the Recovery Officer who an being satisfied about the outstanding amount has to authorize the sale officer to recover the mentioned amount from the judgment debtor by issuing a demand notice and if there is no response, then to attach the property which is the second stage and follow it up by issuing a proclamation for the sale of the attached immovable property and to actually sell the property in a public auction sale. 65. In the present case, as the award is not a mortgage decree attachment of the property to be sold is a condition precedent as per Rule 38(1). The record also shows that a notice for the attachment of the property in form No.6 dated: 28.5.1993 while is prepared, the record does not disclose that the property has actually been attached. On the other hand, both the sale proclamation in form No 8 and the sale notice in form No. 9 both of which are simultaneous and bears the same date 19.6.1993 (over written in both forms) proceed on the premise that the property has already been attached. Such procedure followed by the recovery officer/sale officer is clearly in violation of Rule 38 (1), Rule 38(2)(a), 38(2)(b) and 38(2)(c) of the Rules. It is to be seen these rules contemplates opportunity to the judgment debtor at every stage to pay up the award amount and avoid sale of the property i.e. avoiding coercive recovery. It is only when the judgment debtor does not avail of all these opportunities and remains a defaulter, the sale will take place. In my view, an irregularity involving violation of these statutory provisions and leading to a denial of an opportunity to the judgment debtor to save his property by making good the payment, definitely constitutes a material irregularity, defeating the very purpose and object of Rule 38(5) and therefore a sale tainted with such material irregularity cannot be sustained but has to be set aside under Rule 38(5). 66. 66. Now the finding of both the Recovery Officer and the revisional authority is that they are satisfied about the proper procedure being adhered to on the examination of the record. The finding is a perverse finding. To characterize so a perusal of the record before the court is sufficient and does not involve examination of any further disputed facts. Also both the original authority as well as the revisional authority have opined that the judgment debtor not availing of the provisions of Rules 38(4)(a) is a good ground for rejecting the application under Rule 38(5)(a). While this again is clearly a perverse finding it was not even open to the revisional authority to take this view in the light of the specific direction issued by this court that the matter was being remanded to the revisional authority after setting aside its earlier order taking this view ordering that: III) The matter is remanded back to the Revisional authority to reconsider the revision petition filed by Sri. Gopalakrishna Bhat in accordance with law keeping in view that the application filed by Sri Gopalakrishana Bhat was under 38(5)(a) of the Rules and not Rule 38(4)(a) of the Rules. 67. The argument that a person like the writ petitioner cannot maintain an application under Rule 38(5) of the Rules, but should have invoked Rule 38(4) is not tenable and is rejected and is well sustained by the authority, and in the present case as per the order dated 27.03.2003 passed by this Court in the case of very parties in W.P. No. 19816/2002. 68. Be that as it may, the argument is definitely good enough to make out a case of material irregularity, as contemplated under Rule 38(5) of the Rules for non-compliance with Rule 38(2)(a), which in turn is linked to Rule 34 of the rules which reads as follows: 34. Application for execution to the Recovery Officer: (1) Every decree holder requiring execution of a decree under the provisions of clause (c) of Section 101, shall apply to the Recovery Officer within whose jurisdiction the judgment-debtor resides or has property and shall deposit the probable cost of execution as many be fixed by such Officer. (2) Every such application shall be made in the form specified by the Registrar and shall be signed by the decree-holder. (2) Every such application shall be made in the form specified by the Registrar and shall be signed by the decree-holder. The decree-holder may indicate whether he wished to proceed against the immovable property mortgaged to the decree-holder or other immovable property or to secure the attachment of movable property. Where he wishes to proceed against immovable property, he shall give in the applications such description of the property as is sufficient for its identification. In case such property can be identified by boundaries or numbers in a record of rights, settlement or survey, the specification of such boundaries or numbers and the specification of the judgment-debtor’s share or interest in such property to the best of the belief of the decree-holder and so far as he has been able to ascertain, shall be given in the application. 3) On receipt of such application, the Recovery Officer shall verify the correctness and genuineness of the particulars set forth in the application with the records, if any, in the office of the Registrar and prepare a demand notice, in writing, in duplicate in the form specified by the Registrar setting forth the name of the judgment-debtor and the amount due and forward it to the Sales Officer, In case the execution is against immovable property the amount shall include the expenses, if any, and the batta to be paid to the person, who shall serve the demand notice, the time allowed for payment; and in case of non-payment the particulars of the immovable properties, if any, to be attached and sold or to be sold without attachment as the case may be: Provided that where the Recovery Officer is satisfied that a judgment-debtor with intent to defeat or delay the execution proceedings against him is about to dispose of the whole or any portion of his property, the demand notice issued shall not allow any time to the judgment-debtor for payment of the amount due by him and the property of the defaulter shall be attached forthwith. Rule 38(1), (2), (3) and (4) of the Rules, read as under: 38. Attachment and sale of immovable property: (1) Immovable property shall not be sold in execution of a decree unless such property has been previously attached: Provided that where the decree has been obtained on the basis of a mortgage of such property it shall not be necessary to attach it. Attachment and sale of immovable property: (1) Immovable property shall not be sold in execution of a decree unless such property has been previously attached: Provided that where the decree has been obtained on the basis of a mortgage of such property it shall not be necessary to attach it. (2) In the attachment and sale or sale without attachment of immovable property, the following rules shall be observed: (a) The sale officer shall serve or cause to be served a copy of the demand notice under sub-rule (3) of rule 34 upon the judgment debtor or if he is not available, upon some adult male member of his family or upon his authorized agent or if such service is not possible, shall affix a copy thereof on some conspicuous part of the immovable property about to be attached and sold or sold without attachment, as the case may be: (b) If the judgment debtor fails to pay the amount specified in the demand notice within the time allowed or, if no time is allowed, immediately, the sale officer shall proceed to attach and sell, or sell without attachment, as the case may be, the immovable property specified in the demand notice; (c) Where attachment is required before sale, the sale officer shall cause a notice of attachment to be served on the judgment debtor personally or on an adult male member of his family or of his authorized agent. Where such service is not possible, the notice shall be affixed in some conspicuous part of the judgment debtor’s last known place of residence. The fact of attachment shall also be proclaimed by beat of drum or other customary mode at some place on or adjacent to the property attached, and at such other place or places as the recovery officer may consider necessary to give publicity to the sale. The attachment notice shall set forth that unless the amount due with interest and expenses be paid within the date therein mentioned, the property will be brought to sale. A copy of such notice shall be sent to the decree-holder. Where the recovery officer so directs, the attachment shall also be notified in the official gazette. (d) Proclamation of sale be published by affixing a notice in the office of the recovery officer and in the taluk office at least thirty days before the date fixed for the sale. A copy of such notice shall be sent to the decree-holder. Where the recovery officer so directs, the attachment shall also be notified in the official gazette. (d) Proclamation of sale be published by affixing a notice in the office of the recovery officer and in the taluk office at least thirty days before the date fixed for the sale. It shall also be published by beat of drum in the village on two consecutive days previous to the date of the sale and on the day of sale prior to the commencement of the sale. Such proclamation shall, where attachment is required before sale, be made after the attachment has been effected Notice shall also be given to the decree holder and place of sale and specify as fairly and accurately as possible – (i) the property to be sold (ii) any encumbrance to which the property is liable; (iii) the amount for the recovery of which sale is ordered; and (iv) Every other matter which the sale officer considers material for a purchaser to know in order to judge the nature and value of the property. (e) When any immovable property is sold under these rules, the sale shall be subject to the prior encumbrances on the property if any the decree holder shall, when the amount for the realization of which the sale is held exceeds Rs 100, furnish to the sale officer within such time as may be fixed by him or by the recovery officer, an encumbrance certificate from Registration Department for the period of not less than twelve years prior to the date of attachment of the property sought to be sold or in cases falling under the proviso to sub-rule (1) prior to the date of the application for execution. The time for the production of the encumbrance certificate may be extended at the discretion of the sale officer or the recovery officer as the case may be. The time for the production of the encumbrance certificate may be extended at the discretion of the sale officer or the recovery officer as the case may be. Provided that in case where an encumbrance certificate is not obtainable owing to destruction of the connected records, an affidavit from the village patwari [shanbhogue] in regard to the encumbrances known to him supported by a certificate from the Registration Department that the encumbrance certificate cannot be granted owing to the destruction of the connected records, shall be accepted in the place of an encumbrance certificate; (f) The sale shall be by public auction to the highest bidder provided that it shall be open to the sale officer to decline to accept the highest bid where the price offered appears to be unduly low or for other reasons and provided also that recovery officer or the sale officer may, in his discretion, adjourn the sale to a specified day and hour, recording his reasons for such adjournment. Where a sale is so adjourned to a longer period than 7 days, a fresh proclamation under clause [d] shall be made unless the judgment debtor consents in writing to waive it; (g) The sale shall be after the expiry of not less than 30 days calculated from the date on which notice of the proclamation was affixed in the officer of the Recovery Officer. The time and place of sale shall be fixed by the recovery officer and the place of sale shall be the village where the property to be sold is situated or such adjoining prominent place of public resort as may be fixed by the said recovery officer; (h) A sum of money equal to 15 percent of the price for which the immovable property is purchased in the auction shall be paid by the purchaser to the sale officer at the time of purchase, and in default of such deposit, the property shall forthwith be resold. Provided that, where the decree holder is the purchaser and is entitled to set off the purchase money under clause [I] the sale officer shall dispense with the requirements of this rule; Provided further that where the Government is the purchaser the purchase money shall be remitted to the decree holder immediately after the expiry of ninety days from the date of sale. (i) The remainder of the purchase money and the amount required for the general stamp for the sale certificate shall be paid within 45 days from the date of sale; Provided further that in calculating the amounts to be paid under the clause, the purchaser shall have the advantage of any set off to which he may be entitled under clause [1]. (i) In default of payment of the remainder of the purchase money within the period mentioned in clause [i], the deposit may if the recovery officer thinks fit, after defraying purchaser shall forfeit all claims to the property or to any of the sum for which it may subsequently be sold; (k) Every resale of immovable property in default of payment of the amounts mentioned in clause [i], within the period allowed for such payment, shall be made after the issue of a fresh proclamation in the manner and for the period therein before prescribed for the sale. (l) Where a degree holder purchases the property, the purchase money and the amount due on the decree shall be set off against one another, and the sale officer shall enter up satisfaction of the decree in whole or in part, accordingly. 3) Where prior to the sale, the Judgment debtor or any person acting on his behalf or any person claiming an interest in the property sought to be sold tenders payment of the full amount due together with interest, batta and other expenses incurred in bringing the property to sale, including the expenses of attachment, if any, the sale officer shall forthwith release the property after canceling where the property has been attached, the order of attachment. [4][a] Where immovable property has been sold, any person either owning such property or holding an interest therein by virtue of a title acquired before such sale may apply to have the sale set aside on his depositing with the recovery officer – [i] for payment to the purchaser a sum equal to 5 percent of the purchase money and; [ii] for payment to the decree holder the amount of arrears specified in the proclamation of sale as that for the recovery of which the sale was ordered together with interest thereon and the expenses of attachment if any, and sale and other costs due in respect of such amount, less amount which may since the date of such proclamation have been received by the decree holder. [b] if such deposit and application are made within 30 days from the date of sale, the recovery officer shall pass an order setting aside the sale and shall repay to the purchaser the purchase money so far as it has been deposited together with the 5 percent deposited by the applicant; Provided that, if more persons than one have made deposit and application under this sub-rule, the application of the first depositor to the recovery officer shall be accepted; Provided further that where the purchaser is the Government, the sale shall be set aside if the person owning the property or any person interested therein – [i] makes the application within sixty days from the date of sale along with, - [a] a sum equal to five percent of the purchase money for payment to Government; and [b] fifty percent of the amount due under the decree for payment to the decree holder and [ii] pay the balance within thirty days thereafter i.e., within ninety days from the date of sale. [c] If a person applies under sub-rule [5] to set aside the sale of an immovable property, he shall not be entitled to make an application under this sub-rule.” 69. The consequence that follows is as to whether it has resulted in any substantial injury? [c] If a person applies under sub-rule [5] to set aside the sale of an immovable property, he shall not be entitled to make an application under this sub-rule.” 69. The consequence that follows is as to whether it has resulted in any substantial injury? Even as per the notices addressed to the judgment debtor and which have been returned unserved and which are on the record at page 27 of the record, the description of the very property which has been sold by the public auction is House No 8- 2-63, Kalingarao Lane, Badagupet, Udupi, whereas all along the description of the proposed property for auction sale is only 5 cents of bagayat land. Sale of house property without being preceded by any procedural requirements and to the detriment of the judgment debtor definitely results in substantial injury and it is the definite case of the petitioner in the application filed under Rule 38(5) of the Rules that the sale has resulted in substantial injury. The judgment debtor in fact has claimed in his application under Rule 38(5) that the value of the auctioned property which is house property bearing municipal No. 8-2-63 of Kalinga Rao lane of Badagupet, which is located in the heart of the Udupi Town and adjacent to the auction purchasers’ property, is worth more than 10 lakhs and selling such property for a sum of Rs. 3,95,000/- has resulted in substantial injury to the applicant (paras 9 and 16 of the application). 70. The present round of writ litigation being the fifth round by the judgment debtor in itself is proof of the persevering efforts on the part of the writ petitioner, though she is only one of the legal heirs of the deceased judgment debtor, that it is to the utmost detriment of her interest and seeking for relief in respect of the orders her late husband has suffered on the application under Rule 38(5) of the Rules. 71. The record discloses that the bank obtained an award against the borrower for payment of a sum of Rs 1,03,708/- with interest thereafter in terms of the award dated 23-2-1993. 71. The record discloses that the bank obtained an award against the borrower for payment of a sum of Rs 1,03,708/- with interest thereafter in terms of the award dated 23-2-1993. It is for the execution of such award, the bank made an application to the recovery officer – assistant registrar of cooperative societies, Kundapur – to issue a certificate to authorize the sale officer to take action for recovery of the amount, if need be, by sale of the property belonging to the judgment debtor. While such an application in form No 1 is to be found at page 3 of the execution file No 106/93-94 of the assistant registrar of cooperative societies, Kundapur, it is not actually dated, but it appears to be made in the month of May 1993. It does not bear the date on which it was received at the office of the assistant registrar of cooperative societies, Kundapur. The assistant registrar appears to have acted on such application by himself signing the demand notice. The attachment notice for failure to meet the demand and bearing the date 28-5-1993 [in form No 6] and the record does not disclose that the sale officer had been authorized to recover the amount. 72. Form No 8, which is to be taken as sale proclamation and the notice in form No 9 apprising of the auction sale, both are dated 19-6-1993 [overwritten] and again are signed only by the assistant registrar of cooperative societies, Kundapur. The only action on the part of the sale officer appears to be an office note dated 20-9-1993 regarding tom-tom of the proposed sale on 25-9-1993, signed by the sale officer. 73. The record does not disclose the actual service of demand notice or of the attachment or of the proclamation of sale and the notice for sale on the judgment debtor. It is not served at all on the judgment debtor in any of the three stages referred to above. 73. The record does not disclose the actual service of demand notice or of the attachment or of the proclamation of sale and the notice for sale on the judgment debtor. It is not served at all on the judgment debtor in any of the three stages referred to above. It is after such procedure rather violation of procedure, the property is actually sold on 23-7-1993 in favour of the auction purchaser – a neighbour – for a sum of Rs 3.95 lakh, within a span of two months, starting from the stage of the decree holder applying for execution of the award to the date of actual sale taking place, which have all been completed and the property sold in favour of a neighbour of the judgment debtor describing the property as an agricultural land measuring 5 cents, whereas it is actually a house property having municipal number and located in the heart of the Udupi town. The judgment debtor claims that the property is worth more than Rs 10.00 lakh. 74. Material irregularity leading to illegality and failure of discharge duties is writ large on the face of the record. The recovery officer records a finding that everything is alright on a perusal of the record. The revisional authority affirmed this finding on a second look at the record. It is such orders, which are sought for judicial review before this court. The application for setting aside the sale under Rule 38(5) of the Rules was made even as on 23/24-8-1993. It is the order passed on such application which is the subject matter in this writ petition. 75. It is obvious that the Assistant Registrar appears to have acted with an uncharacteristic degree of efficiency in this case for the realization of the decretal amount in favour of the decree holder, whereas the normal conduct of such public authority in such matters is the proverbial letharginess and even carelessness, but not completing the sale of the property within such a very short span of time as indicated above. 76. 76. While, it is true that the present writ petition is only by one of the legal of the deceased judgment debtor, that by itself can neither be a ground for holding that the writ petition itself is not maintainable nor to prevent the scrutiny of the administrative action in the exercise of the jurisdiction of judicial review of administrative action under Article 227 of the Constitution of India. 77. As observed earlier, the litigation is not adversary in nature between the petitioner and the respondents 6 to 8 and therefore the contention that the matter does not warrant interference at the instance of one of the legal heirs of the judgment debtor does not merit acceptance. A review in exercise of power even under Article 227 of the Constitution of India is a review of the administrative action and the manner in which the statutory powers are exercised and not essentially in the context of the rights either by the writ petitioner or by the respondents. A writ petitioner at the best constitutes a person who has locus to bring to the notice of the court certain irregularities or illegalities on the part of statutory functionaries, which call for examination by the court and if warrants interference. Such is the jurisdiction and such is the scope of scrutiny and examination. 78. In the result, it is declared that the impugned orders at Annexure-A and B are not sustainable and can be examined on the touchstone of the requirement and examination needed for an application under Rule 38(5) of the Rules and the orders are set aside. 79. While Sri S P Shankar, learned senior counsel appearing for respondents 6 to 8 has pressed for an order of remand even when this court should find that the impugned orders are not sustainable, Sri Hegde, learned counsel for the petitioner has submitted that there is absolutely no need for remanding the matter again and again, particularly as the petitioner is before this court in the fifth round of writ litigation and having failed to get relief before the statutory functionaries or even before the revisional authority in the fourth round. 80. 80. The manner in which the proceedings have been conducted and coupled with the overwriting in the records, while does not inspire confidence of the court to remand the matter yet again to the recovery officer for a fresh examination, I am also of the view that it is not warranted for the reason that a remand should serve a purpose and if there is further need for examination by authorities concerned, and for a decision thereafter. In the present case, on the available records and pleadings, the petitioner and her predecessor in title – the judgment debtor – having made out a case for allowing the application under Rule 38(5) of the Rules, the application can be ordered even in exercise of jurisdiction under Article 227 of the Constitution of India before this court, as a litigation of this nature cannot be protracted indefinitely and to the agony of the persons seeking relief. Mere fact that it can affect the interest of an auction purchaser and that the auction purchaser has further improved or developed the property, by itself cannot come in the way of the consequences of an application under Rule 38(5) of the Rules. When once an application under Rule 38(5) has to be allowed on merits, the sale has to be set aside, which is the very purchase and object of Rule 38(5) of the rules (See AIR 1995 SC 1971 – Nani Gopal Paul Vs. T. Prasad Singh). 81. If such argument is to be accepted, then the action on an application under Rule 38 (5) of the Rules can be rendered nugatory by the action purchaser developing the property to their advantage and plead either subsequent development or equities as a ground for interference. That will virtually defeat the very purpose and object of the application under Rule 38(5) of the Rules, which, as discussed earlier, designed to help provide relief to a judgment debtor-applicant to invoke the provision in a situation where his/her interest is adversely affected by the proceedings in an auction sale. The subsequent development while will constitute a ground for declining relief, that by itself cannot come in the way of the grant of relief in a justifiable case. 82. The subsequent development while will constitute a ground for declining relief, that by itself cannot come in the way of the grant of relief in a justifiable case. 82. That the subsequent development also cannot be a ground for denying the relief to the writ petitioner for the simple reason that the petitioner is knocking the door of this court and before the authority ever since the action sale was conducted on 23-7-1993 and by making application under Ruler 38(5) of the Rules. It cannot be held to the disadvantage of such an applicant that mere lapse of time due to the pendency of the proceeding can be a ground to deny relief to the writ petitioner. 83. It is for this reason, this writ petition is allowed and the impugned orders at Annexure-A and B to the writ petition are set aside, by issue of writ of certiorari. Rule made absolute. Auction sale conducted on 23-7-1993 is also set aside. It is open to the bank to recover the amount due from the petitioner in any manner as permitted in law and after giving credit to the amounts that the judgment debtor or his legal heirs have already remitted to the bank. While the security in favour of the bank remains, it is for the Bank to take recourse as per law for realization of the amount due to it. However it is for the Bank to refund the purchase price to the auction purchaser as of now and claim reimbursement from the judgment debtor, if the judgment debtor seeks to avoid coercive recovery of the award amount yet again.