Judgment :- Common Judgment: (P.K. Misra, J.) For convenience, the Debt Recovery Tribunal and the Debt Recovery Appellate Tribunal are hereinafter referred to as "DRT" and "DRAT" respectively. Mrs.S. Pareealam, wife of Mr.A.K. Srikanth, is the petitioner in W.P.No.6149 of 2005. She is the Proprietrix of M/s. Verismo Impex. One Aishwaraya & Company has transferred a Letter of Credit No.10991 dated 11. 2001. The applicant of such Letter of Credit is Supreme Impex Agency, Singapore and the beneficiary was Aishwaraya & Company. The petitioner also received another Letter of Credit from Supreme Impex vide L.C.No.LCDP 1910 issued by UCO Bank, Singapore. On the basis of these two Letters of Credit, she had approached the Indian Overseas Bank (in short "IOB") for a packing credit to a tune of Rs.50 lakhs. IOB had given credit to a tune of Rs.25 lakhs. In connection with the aforesaid transaction, IOB filed O.A.No.304 of 2003 before the DRT against M/s. Verismo Impex, represented by its Proprietrix and Mrs. Pareemalam and her husband A.K. Srikanth as borrowers and Dr. Shantha Ramakrishna, who was the guarantor. An ex-parte final order was passed by DRT on 35. 2004 in such Original Application by allowing the claim of the bank. 1.1 The guarantor, who was Respondent No.4 in such Original Application, filed M.A.No.204 of 2004 for setting aside the ex-parte final order. She also filed M.A.No.203 of 2004 for condonation of delay in filing such application and M.A.No.207 of 2004 for stay of operation of the ex-parte final order. A common order was passed in such applications on 10. 2004 by the DRT to the following effect:- ". . . As it is a debatable issue and hence bank is directed to file a counter. As the auction sale is scheduled on 10. 04, hence a conditional opportunity is granted to petitioner to deposit 25% of the OA claim amount to the Recovery Officer or to the bank. On furnishing proof of payment, the Recovery Officer may defer the auction proceeding. Apart from this the def. shall bear the cost of auction sale failing which IA for stay shall stand as rejected. The case be called on 211. 04." 1. On furnishing proof of payment, the Recovery Officer may defer the auction proceeding. Apart from this the def. shall bear the cost of auction sale failing which IA for stay shall stand as rejected. The case be called on 211. 04." 1. 2 The guarantor had filed W.P.No.28756 of 2004 challenging the proceedings initiated both under DRT and the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002 (in short "SARFAESI Act"), wherein an interim order of stay was passed on 10. 2004 in WPMP.No.34927 of 2004. On behalf of the Bank, WVMP.No.2002 of 2004 was filed in W.P.No.28756 of 2004. Taking note of the fact that an affidavit had been filed by the Bank that it was withdrawing the notice under the SARFAESI Act and the fact that a decree had been obtained in O.A.No.304 of 2003, the order of stay was vacated by order dated 1. 2005. 1. 3 On 21. 2005, a fresh notice was published by the Recovery Officer notifying that the auction of the property furnished as security by such guarantor shall be held on 3. 2005. 1. 4 The guarantor had filed M.A.No.52 of 2005 before the DRT for modifying the earlier order dated 10. 2004 relating to deposit of 25% of the claim amount. In the meantime, the principal debtors had filed M.A.Nos.356 and 357 of 2004 for setting aside the ex-parte final order. On 12. 2005, while dealing with such matters arising out of O.A.No.304 of 2003, the DRT had passed the following order:- "Heard the counsel for both the parties in respect of M.A.Nos.203, 204 and 207/04. The petitioner in these M.As has not complied with the orders of this court by depositing 25% of the O.A. claim. Hence, the Recovery Officer is liberty to proceed further with the auction in accordance with order dt.10. 04, which is self-explanatory. The petitioner. D4 moved MA.52/05 for modification of the earlier order but after hearing the counsel, I am not convinced to modify the order as the court has already ordered to deposit 25% of the OA claim without prejudice to the rights and contentions of the merits of the OA and this MA is partly allowed in case the defendants deposit 25% of the OA claim. The case be called for counter and enquiry in MA No.356 and 357/04 on 13. The case be called for counter and enquiry in MA No.356 and 357/04 on 13. 2005." 1.5 In the meantime, a complaint had been filed by Mrs. Pareemalam on 26. 2004 before the C.B.I., making certain allegations pertaining to issuance of the Letters of Credit and Crl.O.P.No.35023 of 2004 had been filed by her against the Bank. On 12. 2005, Crl.O.P.No.35023 of 2004 was disposed of by the High Court directing the C.B.I. to register First Information Report against the bank for its alleged fraudulent acts in issuing letter of credit transaction. 1.6 On 22. 2005, Respondent No.1 in O.A.No.304 of 2004, namely, M/s. Verismo Impex filed W.P.No.6149 of 2005 for a Mandamus to be issued to the Recovery Officer, Debt Recovery Tribunal, to desist from proceeding with the auction sale of the collateral property situated at S.No.12, T.S.No.66, 90, 11th Street, Tatabad, Coimbatore 12, which had been given as security by Smt. Shantha Ramakrishna, pending completion of investigation by Central Bureau of Investigation, into the alleged fraud. On 22. 2005, an interim order of stay of confirmation of auction was granted in such writ petition, which is to the following effect:- "Interim stay of the confirmation of the auction. It is made clear that the third parties, bidding at the auction, shall not claim any rights over the property and this order will be subject to the outcome of the petition filed by the petitioner for setting aside the ex-parte order. Notice." 1. 7 The guarantor filed W.P.No.6662 of 2005 praying for issuing a Writ of Prohibition prohibiting the IOB and the Debt Recovery Officer from proceeding further with O.A.No.304/2003 so far as such writ petitioner was concerned on the grounds that applications for setting aside the ex-parte final orders filed by the principal debtors as well as the guarantor were pending before the DRT and the property worth more than Rs.1.5 crores should not be sold for a claim less than Rs.55 lakhs. While admitting such writ petition on 22. 2005, an interim order was passed permitting the respondents to proceed with the sale, but further directing that the sale shall not be confirmed until further orders. 1. 8 One Dr. Chamundeeswari, Daughter of Smt. Shantha Ramakrishna, had filed W.P.No.6131 of 2005 claiming that the property had been settled in her favour by her mother by a deed of settlement registered on 24. 1. 8 One Dr. Chamundeeswari, Daughter of Smt. Shantha Ramakrishna, had filed W.P.No.6131 of 2005 claiming that the property had been settled in her favour by her mother by a deed of settlement registered on 24. 2004 and such property should not be auctioned. It was therefore prayed to prohibit the Registrar, Debt Recovery Tribunal, to proceed further with O.A.No.304/2003 in respect of the four storied building located in 90, 11th Street, Tatabad, Coimbatore. The contention in such writ petition is that the deed of settlement was executed in her favour on 24. 2004, much before the final order was passed by the DRT on 35. 2005. The Recovery Officer issued Recovery Certificate only on 7. 2004 and created a charge on the property on 28. 2004, much after the deed of settlement in her favour on 24. 2004. She is claiming right over the building measuring 15,000 sq.ft. located at Door No.90, 11th Street, Tatabad, Coimbatore. In the schedule of property, the property is described as comprised in Coimbatore Registration District, Gandhipuram Sub Registration District, Coimbatore North Taluk, Sanganur Village, G.S.Nos.197 & 198 within Coimbatore Municipal Corporation limit, Municipal Ward 11, T.S.No.668, Plot No.512 at Door Old Door No.58, New Nos.89,90, 91 & 91-A, 11th Street, Tatabad, Coimbatore. Such writ petition was admitted on 3. 2005 and in WPMP.No.6735 of 2005, an order was passed to the following effect:- "Considering the orders already passed with reference to the same impugned Public Auction sale notice in WP.No.6662 of 2005, there will be a similar interim injunction in this writ petition also. The auction may proceed. There will be no confirmation of the auction." On 3. 2005 the sale was conducted by the Recovery Officer to enforce the final order dated 35. 2004. 1. 9 The petitioner in W.P.No.6149 of 2005 subsequently filed W.P.No.23002 of 2006 alleging that till finalisation of the investigation relating to fraudulent action on the part of the bank officials, a writ of Mandamus should be issued directing the Recovery Officer of the DRT not to deliver possession of the property situated 90, 11th Street, Tatabad, in S.No.12, T.S.No.66, Coimbatore-12, till the completion of investigation by CBI & CBCID as per the direction of the High Court dated 12. 2005 in Crl.O.P.No.35073 of 2004 & O.P.No.16092 of 2006, dated 26. 2006. Such writ petition has been simply directed to be posted along with W.P.No.6149 of 2005. 2. 2005 in Crl.O.P.No.35073 of 2004 & O.P.No.16092 of 2006, dated 26. 2006. Such writ petition has been simply directed to be posted along with W.P.No.6149 of 2005. 2. Subsequently, the interim order of stay in W.P.No.6149 of 2005 was made absolute, subject to condition of deposit of 50% of the amount. W.A.No.2109 of 2005 was filed against such order dated 8. 2005, but such appeal was withdrawn with liberty to pursue the remedy available before the DRT / DRAT as apparent from order dated 212. 2005. 2.1 In the meantime, M.A.No.52 of 2005 filed by the guarantor to review the order dated 10. 2004, which was adjourned from to time, was taken up by the DRT and as per order dated 111. 2005, the DRT, while refusing to review the condition relating to deposit of 25% of the claim amount, observed inter alia:- "However after passing the order on merit it is not proper for this court to recall the condition imposed at this stage as this court has already stated to deposit 25% of the OA claim amount without prejudice to the rights and contentions of the defendants if any and merits of the OA which is mentioned in 12. 05. Therefore if she deposited this amount, she may be given conditional opportunity to contest the case on merit by filing her written statement. But by merely filing application for lifting the condition that cannot be allowed till she complies the condition imposed or to produce stay from higher appellate forum she has admitted this facts in her petition that she stood only as a guarantor to the loan availed by the principal borrower firm therefore she cannot escape from her loan liability as being a guarantor. All these debatable issue can be considered when formal compliance is made and formal written statement is taken on record and by appreciating of the evidence produced by both the parties. Therefore the present MA is liable to be rejected. However only a conditional opportunity is granted by extending of time for payment of 25% of the OA claim amount and this time is extended for another four weeks from the date of receipt of copy of the order. On furnishing proof of payment, the auction sale shall be deferred and subject to outcome of other pending application in MA.356, 357/04 filed by principal borrower/petitioner. On furnishing proof of payment, the auction sale shall be deferred and subject to outcome of other pending application in MA.356, 357/04 filed by principal borrower/petitioner. As the principal borrower has preferred MA 356 & 357 for setting aside the final order, if she comply with the condition, she may be permitted to contest the case on merits. With this observation, MA 52/05 is partly allowed and period for making payment is further extended by another four weeks." 2. 2 M.A.No.143 of 2006 was filed before the DRAT by the guarantor against the order in M.A.No.52 of 2005. Such application was subsequently rejected by DRAT as per order dated 6. 2006. 2. 3 On 211. 2005, the Debt Recovery Tribunal passed an order in M.A.Nos.356 and 357 f 2004 setting aside the ex parte final order, subject to deposit of 50% of the decreetal amount. The principal borrower filed M.A.Nos.188 and 189 of 2006 challenging such order passed by the DRT mainly on the ground that the condition imposed was very onerous. The DRAT by its order dated 211. 2006 allowed in part such Miscellaneous Appeals and directed that the ex-parte final order would be set aside subject to payment of Rs.15 lakhs. This order of DRAT has been challenged by the Bank by filing W.P.No.49641 of 2006. The borrower has challenged such order dated 211. 2006 by filing CRP NPD.Nos.1807 and 1808 of 2006 mainly on the ground that the condition is too onerous. 2. 4 While the matter stood thus, the auction sale has been confirmed by the Recovery Officer on 3. 2006. Contempt Petition No.777 of 2006 was filed by the guarantor alleging that the order dated 23. 2005 passed by the High Court in WPMP.No.7315 of 2005 arising out of W.P.No.6662 of 2005 had been violated. The Recovery Officer filed an affidavit tendering apology on the basis of which such Contempt Petition was closed by order dated 1. 2007. 2. 5 The conditional order passed by the DRAT in M.A.Nos.188 & 189 of 2006 was modified by extending the time for making the deposit. It is not in dispute that an amount of Rs.15 lakhs has been deposited before the bank within such extended period. 2. 6 The auction purchaser has subsequently got himself impleaded as a respondent. 3. 2. 5 The conditional order passed by the DRAT in M.A.Nos.188 & 189 of 2006 was modified by extending the time for making the deposit. It is not in dispute that an amount of Rs.15 lakhs has been deposited before the bank within such extended period. 2. 6 The auction purchaser has subsequently got himself impleaded as a respondent. 3. It is contended by IOB., the petitioner in W.P.No.49641 of 2006, that the Appellate Tribunal has not considered the fact that the auction was conducted on 3. 2005 and the sale was subsequently confirmed on 3. 2006 and sale certificate had been issued and he Tribunal should have taken into account the interest of the auction purchaser. It is further contended that Respondents 1 to 3 had remained absent inspite of service of notice to evade payment and to protract the proceedings. It is further contended in the grounds that the Tribunal should have taken into account the fact that similar appeal filed by the guarantor had been rejected by the DRAT. 4. One of the main contentions raised by the counsel for the petitioner / bank is to the effect that the Appellate Tribunal has set aside the final order without considering the materials on record relating to sufficiency of the cause shown by the present respondents, who were the applicants in the application for setting aside the ex-parte final order. 5. In this context, however, it has to be noted that in fact the DRT itself had passed an order setting aside the final order subject to condition of deposit of 50%. Such order was passed by coming to the conclusion that in the interest of justice it was necessary to give an opportunity to the respondents to contest the proceedings on merit. This order of the DRT was not challenged by the bank either by filing appeal before the DRAT or by filing petition under Article 226 / 227 of the Constitution of India before the High Court. In other words, the conclusion of the DRT that it was necessary in the interest of justice to give opportunity to the Respondents 1 to 3 to contest the proceedings on merit had remained unchallenged and the propriety of the condition imposed was the only subject matter of challenge in the appeal which was filed by the respondents before the DRAT. The DRAT in its discretion and wisdom has modified such condition by reducing the amount to be deposited to Rs.15 lakhs. Such amount has also been accepted by the bank. While challenging such order of the DRAT reducing the amount to be deposited from Rs.25 lakhs to Rs.15 lakhs, it is not open to the bank to go behind the initial order passed by the DRT under which there was a direction to set aside the ex-parte final order. So far as the Bank is concerned, such order of the DRT setting aside the exparte decree had become final and only issue alive was regarding the legality of the condition which was the subject matter of appeal at the instance of the borrower. Under such circumstances, it would not be appropriate for us to go behind the initial order passed by the DRT, whereunder the ex-parte final order had been set aside, subject to condition. 5. 1 The remaining question is relating to the modification of the condition of deposit of amount. As we have already indicated, it is a matter of discretion and we do not think in exercise of jurisdiction under Article 226, such order should be interfered with. The writ petition filed by the Bank, therefore, does not merit any consideration and is liable to be dismissed. 6. So far as the Civil Revision Petitions filed by the borrowers are concerned, the main contention raised is that the condition of deposit of Rs.15 lakhs is very onerous and, therefore, such condition is required to be modified. 7. In our considered opinion, the same logic is applicable and there is hardly any scope to interfere with the discretion exercised by the DRAT. Moreover, the petitioners in such Revision Petitions have already deposited the amount with the Bank. Under such circumstances, there is nothing to interfere in such Civil Revision Petitions. 8. Learned counsels for the borrowers / guarantor have, however, contended that inspite of the fact that the order was passed by the High Court directing that there should not be confirmation of sale, the Recovery Officer has not only confirmed the sale but also issued sale certificate in favour of the auction purchaser. It is therefore contended that such order passed by the Recovery Officer in clear violation of the order of stay passed by the High Court cannot be allowed to remain. It is therefore contended that such order passed by the Recovery Officer in clear violation of the order of stay passed by the High Court cannot be allowed to remain. It is further contended that in view of the fact that the ex-parte final order has already been set aside and the extent of liability of the respondents is to be considered afresh, such auction sale cannot be allowed to stand. 19. Learned counsel for the Bank as well as the counsel for the impleaded auction purchaser have placed reliance upon the decision of the Supreme Court reported in AIR 1967 SC 608 (JANAK RAJ v. GURDIAL SINGH) and contended that the fact that the ex-parte final order has been subsequently set aside cannot be a ground to set aside the auction. It was observed in the said case as follows:- "24. For the reasons already given and the decisions noticed, it must be held that the appellant-auction-purchaser was entitled to a confirmation of the sale notwithstanding the fact that after the holding of the sale the decree had been set aside. The policy of the legislature seems to be that unless a stranger auction-purchaser is protected against the vicissitudes of the fortunes of the suit, sales in execution would not attract customers and it would be to the detriment of the interest of the borrower and the creditor alike if sales were allowed to be impugned merely because the decree was ultimately set aside or modified. The Code of Civil Procedure of 1908 makes ample provision for the protection of the interest of the judgment-debtor who feels that the decree ought not to have been passed against him. On the facts of this case, it is difficult to see why the judgment-debtor did not take resort to the provisions of Order 21 Rule 89. The decree was for a small amount and he could have easily deposited the decretal amount besides 5 per cent of the purchase money and thus have the sale set aside. For reasons which are not known to us he did not do so." 10. Learned counsel for the borrowers has, however, contended that in the present case, inspite of an order of stay of confirmation of sale, the Recovery Officer has confirmed the sale and issued the sale certificate in gross violation of the courts order. For reasons which are not known to us he did not do so." 10. Learned counsel for the borrowers has, however, contended that in the present case, inspite of an order of stay of confirmation of sale, the Recovery Officer has confirmed the sale and issued the sale certificate in gross violation of the courts order. Under such circumstances, therefore, it would be most inappropriate to allow such illegal action of the Recovery Officer to stand by applying the ratio of the decision of the Supreme Court. 11. To appreciate the above contention, it may be necessary to notice certain ancillary facts. From all the connected records it appears that an order of interim stay was granted on 22. 2005 in WP.No.6149 of 2005, which was filed by the principal debtor, but subsequently in such stay order, even though confirmed, a condition was imposed regarding deposit of 50%. The principal-debtor at that stage had filed W.A.No.209 of 2005, which was withdrawn to pursue the remedy available before the DRT/DRAT. However, an independent order of stay of confirmation was passed in W.P.No.6662 of 2005 filed by the guarantor. The contention raised is that such order of stay continued in force even when the confirmation order was issued by the Recovery Officer. As a matter of fact, there was a similar order in W.P.No.6131 of 2005 staying confirmation of auction. 12. The contention raised by the bank and the respondents is to the effect that since the guarantor had failed to comply with the condition relating to deposit of money as a condition for setting aside the ex-parte final order passed by the DRT, such guarantor cannot be heard to say that confirmation was illegal. In this connection, it is further contended that since the guarantor herself was not entitled to take advantage of the stay order in view of the fact that the guarantor has failed to comply with the condition imposed in the application filed by her, the principal debtor cannot be permitted to take any advantage of such order as such order was essentially to protect the guarantor and not the principal debtor. 13. We have already noticed that the High Court had issued a specific order in W.P.No.6662 of 2005 filed by the guarantor to the effect that the auction sale should not be confirmed. Such an order had also been passed in W.P.No.6131 of 2005. 13. We have already noticed that the High Court had issued a specific order in W.P.No.6662 of 2005 filed by the guarantor to the effect that the auction sale should not be confirmed. Such an order had also been passed in W.P.No.6131 of 2005. It is no doubt true that in W.P.No.6149 of 2005 filed by the principal debtor the order of interim stay of confirmation of sale was modified by giving a direction relating to deposit of certain amount but, the principal debtor instead of complying with such direction, had chosen to file an appeal, which was ultimately withdrawn with liberty to pursue the remedy before the Debt Recovery Tribunal. Therefore, even though the stay of confirmation of sale became non-operational so far as W.P.No.6149 of 2005 was concerned, orders dated 22. 2005 and 3. 2005 in W.P.Nos.6662 of 2005 and 6131 of 2005 directing that auction should not be confirmed, continued to be operative. Since an order of confirmation was passed by the Recovery Officer notwithstanding orders of stay to the contrary, there cannot be any doubt that such an order of confirmation of sale by the Recovery Officer must be taken to be inoperative. It is no doubt true that in the Contempt Proceedings initiated in connection with W.P.No.6662 of 2005 against such Recovery Officer, the High Court has chosen to accept the apology offered by such Recovery Officer. The effect of such order is that the dereliction of duty on the part of the officer has been condoned by the High Court, but it does not mean that invalidity of the order has been validated. In the present juncture, it has to be seen whether such order of confirmation of sale can at all be given effect to merely because the contempt proceedings has been closed by accepting the apology. We do not think it would be appropriate to allow such an order of confirmation, which was in contravention of an order of stay passed by the High Court, to remain effective merely because the contempt proceedings had been closed as adopting such a course may result in encouragement of similar transgression by other persons. In this context it has to be remembered that the Recovery Officer is not a mere layman, who can feign ignorance in such matters. In this context it has to be remembered that the Recovery Officer is not a mere layman, who can feign ignorance in such matters. Therefore, in our considered opinion, irrespective of the result of different writ petitions, the order of confirmation of sale issued by the Recovery Officer in violation of the specific order passed by the High Court, has to be held to be invalid. .14. It is no doubt true that the auction itself, which was held at a time when there was an ex-parte decree, was not invalid at the inception and it may be contended that the question of confirmation of sale can be considered after the disposal of the writ petitions. In this context it has been submitted that the Supreme Court in AIR 1967 SC 608 (cited supra) has categorically laid down that even if the ex-parte decree is set aside and there is no decree in existence at the time when the order of confirmation was passed, yet such confirmation cannot be set at naught except in accordance with the procedure contemplated under Order 21 Rule 89, 90 or 91 CPC. 15. In our considered opinion, the ratio of the said decision should be held applicable to normal cases, but, if the ratio of such decision would be made applicable to the cases where the order of confirmation is passed not under normal circumstances but contrary to the specific order of stay issued by the higher court (in this case the High Court), it would be laying down a principle of condoning the infraction made by the Court or by the responsible officer of the Court thus emitting a wrong signal to the society. In our considered opinion, in view of the peculiar factual scenario in the present case, the order of confirmation of sale issued by the Recovery Officer in violation of the High Courts order, which was binding at that stage and even continues to be binding at present, cannot be sustained. 16. The allied question is whether the auction should be set aside? The further question is, in case the auction is set aside, relating to the amount to be refunded to the auction purchaser. 16. 1 In order to afford opportunity of hearing on the above aspects, all the matters which had been reserved for judgment earlier, were re-listed for further hearing during January, 2009. The further question is, in case the auction is set aside, relating to the amount to be refunded to the auction purchaser. 16. 1 In order to afford opportunity of hearing on the above aspects, all the matters which had been reserved for judgment earlier, were re-listed for further hearing during January, 2009. A further affidavit has been filed by the auction purchaser along with a typed set of papers. 16. 2 Since the matters have remained pending for long, the learned counsels for the parties, particularly for the borrowers and the guarantor, have submitted that the matters should be finalized in this Court instead of leaving open such matters for further consideration by the DRT or DRAT. The learned counsel for the auction purchaser has of course submitted that the auction should be upheld and possession be given and in the alternative if that is not possible, the amount deposited should be refunded with interest at the rate of 18% per annum and further amount should be paid towards all incidental expenses incurred by him in connection with the auction. 16. 3 In the peculiar facts and circumstances of the case, instead of leaving the fate of the auction for future legal battle, we feel it appropriate to deal with such aspect in the present litigations. Before, however, considering the above aspect, it is necessary to have a birds eye view of the relevant provisions. 17. Chapter-IV of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 relates to recovery of debt determined by the Tribunal. Section 25 of the Act envisages the different modes of recovery of debts. One of the method contemplated is attachment and sale of immovable property of the defendant. Section 29 of the Act specifically provides that the provisions of the Second and Third Schedules to the Income Tax Act, 1961 shall, as far as possible, apply with necessary modifications. 117. 1 The Second Schedule to the Income Tax Act 1961 contains procedure for recovery of tax. Part-III of the Second Schedule relates to attachment and sale of immovable property. It is thus obvious that the Recovery Officer is required to follow the procedure contemplated in Part-III of the Second Schedule to the Income Tax Act, while effecting attachment and sale of immovable property. Part-III of the Second Schedule relates to attachment and sale of immovable property. It is thus obvious that the Recovery Officer is required to follow the procedure contemplated in Part-III of the Second Schedule to the Income Tax Act, while effecting attachment and sale of immovable property. Once a property has been sold in auction, the procedure to set aside the sale of such immovable property is contemplated in Rules 60, 61 and 62. Rule 63 contains the provision relating to confirmation of sale. The provisions contained in these rules are more less akin to the provisions contained in Order XXI Rules 89 to 92 of the Code of Civil Procedure with some difference. The confirmation of sale which has taken place in this case has been found to be vulnerable not because of any other defect but, solely on account of the fact that the confirmation of sale has taken place in clear contravention of the order of stay passed by the High Court. We have already found that the ex-parte final order was set aside subject to certain conditions and, under the present judgment, we have confirmed such order. .18. It can be justifiably contended by the defendants before the Debts Recovery Tribunal, that is to say, the borrowers/guarantor, that because of the pendency of several proceedings before the High Court, steps could not be taken in accordance with Rule 60, particularly Part-III of Second Schedule to the Income Tax Act. According to Rule 60, the judgment debtors are required to deposit the amount specified in the proclamation of sale with interest at the rate of 15%, calculated from the date of proclamation of sale to the date when the deposit is made and for payment to the purchaser as penalty a sum equal to 5% of the purchase money. As per Rule 64, once such sale is set aside, money paid by the purchaser, together with a penalty, is required to be paid to the purchaser along with such interest as Recovery Officer may allow. 19. In the present case, the ex-parte decree has already been set aside and the question of liability of the borrowers/guarantor is required to be considered afresh. The amount contemplated under Rule 60(1)(a) which is obviously the amount payable to the Government to whom the tax is owed is not a relevant issue. 19. In the present case, the ex-parte decree has already been set aside and the question of liability of the borrowers/guarantor is required to be considered afresh. The amount contemplated under Rule 60(1)(a) which is obviously the amount payable to the Government to whom the tax is owed is not a relevant issue. On the other hand, however, the purchaser is required to be compensated in a reasonable manner. 120. The auction, before it is confirmed, could have been set aside by depositing the auction amount along with 5% interest. Adopting such a course, in the present factual scenario, would obviously work injustice to the auction purchaser, who cannot be blamed for the present imbroglio as the primary fault was obviously of the Recovery Officer. Such mistake seems to have been compounded by the Recovery Officer by not depositing the amount either with the Bank concerned or in any interest bearing deposit. The Recovery Officer can obviously considered to be an Officer of the Debt Recovery Tribunal - in other words, an Officer of the Court. 121. It is quite well known that an erroneous act of the court (as distinguished from erroneous judicial order, which is to be corrected in higher forum) should not prejudice anyone. The auction purchaser obviously had deposited the money in good faith and the fact that an order of stay was passed was obviously not within his knowledge as at that stage he was not a party to the proceedings. 122. Learned counsels for the principal borrower and the guarantor have submitted that the auction purchaser with his eyes open had participated and deposited the money and he cannot be permitted to claim interest at exorbitant rate. It has been further submitted that if the amount would have been deposited with the creditor bank or in any fixed deposit, normal interest, which would have accrued, could have been paid to the auction purchaser. .23. In our considered opinion, the auction purchaser, in addition to the amount, which was deposited, is within his rights to claim a reasonable amount by way of compensation. Keeping in view the rate of interest and all other circumstances, we feel the direction regarding payment of simple interest at the rate of 10% per annum on the deposited amount would meet the ends of justice. Keeping in view the rate of interest and all other circumstances, we feel the direction regarding payment of simple interest at the rate of 10% per annum on the deposited amount would meet the ends of justice. Even though the Recovery Officer should have done better by depositing such amount either with the creditor bank or in a fixed deposit, obviously the interest payable on the deposited amount has to be paid by the beneficiaries of the present order under which we have set aside the order of confirmation of sale. In other words, such amount has to be paid either by the guarantor herself as her property had been sold or even by the principal debtors as they have been trying to protect the property. The auction bid amount has to be refunded by the Recovery Officer to the auction purchaser within a period of two weeks. The principal borrower and/or the guarantor are required to pay interest at the rate of 10% per annum from the date of deposit of such amounts, i.e., initial amount at the time of auction and balance amount at the time of confirmation by calculating from the date of such respective deposits till deposit. Such amount should be paid or deposited within a period of 90 days. .24. There was a direction by the learned single Judge regarding payment of certain amount as condition for stay in W.P.6149 of 2005 filed by the principal debtor, but there was no such direction in W.P.6662 of 2005 filed by the guarantor. On the other hand, the direction issued by the DRT regarding payment of certain amount as a condition for setting aside the ex-parte decree has not been complied with. It is of course true that the principal debtor has ultimately complied with the direction of the appellate authority as a condition for setting aside the ex-parte decree. However, a similar direction given by the DRT in M.As.203, 204 and 207 of 2004 filed by the guarantor as a condition for setting aside the decree against guarantor has not been complied with. If the ex-parte decree as against the principal debtor alone is set aside and it is not set aside so far as the guarantor is concerned, it may give rise to inconsistent orders ultimately. If the ex-parte decree as against the principal debtor alone is set aside and it is not set aside so far as the guarantor is concerned, it may give rise to inconsistent orders ultimately. The property of the guarantor, which was sold in auction, is now being restored to the guarantor, though still continuing as a security. Therefore, keeping in view the tenor of order passed by the DRT, it would be most appropriate to issue a direction to the guarantor to deposit a further sum of Rs.15,00,000/-not only as a condition precedent for setting aside the ex-parte so far as the guarantor is concerned, but also as a condition for setting aside the order of confirmation as well as setting aside the auction itself. In view of the principle that person who seeks equity must do equity, we deem it appropriate to issue such a direction to the guarantor. Such amount, keeping in view the quantum, is required to be deposited within a period of 90 days from today as a condition precedent for permitting the guarantor to contest the proceedings as well as a condition precedent for setting aside the auction and the order of confirmation. Since the decree has been set aside, obviously such amount cannot be paid to the creditor bank. However, there can always be a direction to the creditor bank to keep such amount in a fixed deposit so that the benefit of the accrued interest would be ultimately enjoyed by the successful party depending upon the ultimate result in the proceedings. 125. As already indicated, the cases had been re-listed for further hearing during the month of January, 2009 and further affidavit has been filed by the auction purchaser, 6th respondent. In such affidavit, the auction purchaser has claimed that he is entitled to interest payable at the rate of 18%. Moreover, it has also indicated that a sum of Rs.1,15,000/- had been paid towards bondage fee and a sum of Rs.6,90,000/-had been paid towards registration fee. In addition to the above, the auction purchaser has also claimed certain amount towards other expenses including the Advocate fees, etc. 126. There is no contra affidavit refuting the amount paid towards bondage fee and registration fee, which is obviously required to be refunded by the auction purchaser. In addition to the above, the auction purchaser has also claimed certain amount towards other expenses including the Advocate fees, etc. 126. There is no contra affidavit refuting the amount paid towards bondage fee and registration fee, which is obviously required to be refunded by the auction purchaser. Such amount comes to Rs.8,05,000/-, which is to be paid within a period of 90 days from the date of receipt of a copy of this order. 127. The main contention in W.P.Nos.6149 of 2005 and 23002 of 2006, wherein prayer has been made that there should not be any auction till the investigation of Central Bureau of Investigation is held, need not be decided inasmuch as the question as to whether there shall be auction or not would depend upon the result in the proceedings before the DRT and the liability of the bank for any illegality or irregularity on its part can always be decided by the DRT notwithstanding the pendency of the enquiry before the CBI. These writ petitions are accordingly disposed of. .28. So far as W.P.No.6131 of 2005 filed by the daughter of the guarantor is concerned, it is claimed that the property had been settled even before the property was given as a security to the bank. Now that the auction has been set aside, it may not be necessary to go into the questions raised in such writ petition and, as and when the occasion arises, such petitioner is required to workout her remedy in accordance with law. Such writ petition is therefore disposed of accordingly. 129. For the aforesaid reasons, the following directions are issued: .(i) The amount deposited with the Recovery Officer shall be returned to the auction purchaser within a period of one week from the date of receipt of a copy of this order. .(ii) The borrowers/guarantor are required to pay interest by way of compensation to the auction purchaser at the rate of 10% per annum from the respective dates of deposit of such amount by the auction purchaser i.e., deposit of initial amount at the time of auction and deposit of balance amount at the time of confirmation, till the date of payment by the borrowers / guarantor on such amount. (iii) A sum of Rs.8,05,000/-, which is paid by the auction purchaser towards bondage fee and registration fee, shall be paid by the guarantor. (iii) A sum of Rs.8,05,000/-, which is paid by the auction purchaser towards bondage fee and registration fee, shall be paid by the guarantor. .(iv) The amounts as per Condition Nos.(ii) and (iii) shall be paid directly to the auction purchaser or deposited with the Recovery Officer within a period of 90 days. If such amount is deposited with the Recovery Officer, he in his turn shall pay such amount to the auction purchaser within a period of one week from the date of such deposit. .(v) The guarantor is required to deposit a further sum of Rs.15,00,000/- (Rupees fifteen lakhs) with the Recovery Officer as a condition precedent for the guarantor to contest the proceedings as well as condition precedent for setting aside the auction and the order of confirmation. Such amount shall be kept in a separate fixed deposit account in the creditor bank, so that the benefit of the accrued interest would be ultimately enjoyed by the successful party. .(vi) The directions contained in Condition Nos.(ii), (iii) and (v) shall be complied with by the guarantor within a period of 90 days as a condition precedent for setting aside the ex-parte final order so far as the guarantor is concerned. It is made clear that, if such conditions are not complied with within a period of 90 days from the date of receipt of a copy of this order, the ex-parte final order against the guarantor and the auction of the property shall be deemed to have been confirmed as against such guarantor. 30. In the result, W.P.No.49641 of 2006, filed by the Indian Overseas Bank, and C.R.P.Nos.1807 and 1808 of 2006 stand dismissed and the other writ petitions, i.e., W.P.No.6131 of 2005, 6149 of 2005, 6662 of 2005 and 23002 of 2006 are disposed of, subject to the directions and observations made earlier. There shall be no order as to costs. Consequently the connected miscellaneous petitions are closed.