JUDGMENT Hon’ble Sudhir Agarwal, J.—This writ petition under Articles 226 and 227 of the Constitution of India has been filed by three petitioners assailing order and judgment dated 16.10.2009 passed by Debts Recovery Appellate Tribunal, Allahabad (hereinafter referred to as the “DRAT”) allowing Appeal No. R-862 of 2007 of respondent No. 3, State Bank of Indore branch at P.Y. Road, Indore (Madhya Pradesh). 2. The factual matrix, in brief, for better understanding of dispute in question may be stated as under. 3. The petitioner Nos. 1 and 2 are brothers and petitioner No. 3 is the son of petitioner No. 1. M/s Raj Kumar Mills Limited, (hereinafter referred to as the “Company”) a Company incorporated under the Indian Companies Act, 1956 having registered office at 7 New Dewas Road, Indore (Madhya Pradesh) applied for financial assistance from respondent No. 3 (hereinafter referred to as the “Bank”). The petitioners were Directors of the Company. The petitioners as well as the State of Madhya Pradesh through Secretary, commerce & Industries Department (respondent No. 5) executed guarantee agreement against the credit facilities extended to Company by the Bank. According to Bank the Company was sanctioned Demand Loan I of Rs. 56.91 lacs, Demand Loan II of Rs. 40 lacs, Cash Credit Pledge Limit of Rs. 80 lacs, Medium Term Loan of Rs. 106 lacs, Demand Loan (Restart) of Rs. 14 lacs and Demand Loan (Bonus) of Rs. 15.58 lacs. The Company executed requisite loan documents with the Bank. The State of Madhya Pradesh executed deed of guarantee to secure credit facilities granted to Company. The Company also created equitable mortgage over its immoveable properties as a further security so as to secure cash credit pledge limit of Rs. 80 lacs and demand loan of Rs. 40 lacs. Details of such properties was given in para 5(v) of the application filed by Bank before Debts Recovery Tribunal (hereinafter referred to the “Tribunal”). 4. The Company sustained heavy losses and became a sick unit. It is said that Company and the State of Madhya Pradesh initially entered into a bipartite agreement for change of management of Company but thereafter the Board of Industrial Finance and Reconstruction for Sick Industries vide order dated 21.9.1998 recommended winding up of the Company. The matter came up before the Indore Bench of Madhya Pradesh High Court for further proceedings. 5. The matter came up before the Indore Bench of Madhya Pradesh High Court for further proceedings. 5. In the meantime since the Company failed to liquidate its outstanding dues to the Bank, legal notices dated 30.3.2000 and 11.8.2000 were issued by Bank and thereafter it filed Original Application No. 388 of 2000 before the Tribunal at Jabalpur impleading all these petitioners as defendant Nos. 2, 3 and 4, the Company as defendant No. 1 and State of Madhya Pradesh as defendant No. 5. The Bank sought recovery of Rs. 4,55,34,698.43 from the defendants in the aforesaid application. 6. The Tribunal allowed original application vide judgment dated 5.2.2002 ordering for recovery of Rs. 4,55,34,698.43 with costs from defendants jointly and severally. The liability of defendant Nos. 2 to 4, i.e., the present petitioners however was restricted as detailed in para 6 of the judgment dated 5.2.2002 which reads as under : “6. The Defendant Nos. 2 to 4, in their personal capacity, endorsed and executed a Demand Promissory Note for Rs. 40 Lacs in respect of Credit/Loan facility. Therefore, the personal liability of Defendant No. 2 to 4 is restricted to an amount of Rs. 40 Lacs with interest thereon.” 7. The Tribunal also held that Bank is entitled to recover interest at the rate of 16.50% per annum with quarterly rests from 27.12.2000 till actual realisation. The Bank was also held entitled for sale of mortgaged properties of the Company with intervention of recovery wing of the Tribunal. Similar was the order for sale of mortgage properties of defendant Nos. 2 to 4 (the three petitioners in this writ petition). For recovery of dues from petitioners, the Tribunal reiterated that it shall be restricted to outstanding dues in the account of cash credit (pledge) limit and demand limit as pleaded in para 5(v) of the application. The defendants were also debarred from transferring, alienating or otherwise dealing with or dispose of the hypothecated/mortgaged properties without prior permission of Tribunal. 8. It is said that the respondent No. 5, i.e., the State of Madhya Pradesh filed Writ Petition No. 5057 of 2004 in Madhya Pradesh High Court (Jabalpur) challenging Tribunal’s judgment dated 5.2.2002. During pendency of writ petition, the Bank and State of Madhya Pradesh arrived at a settlement pursuant whereto the respondent No. 5 paid a sum of Rs. 8. It is said that the respondent No. 5, i.e., the State of Madhya Pradesh filed Writ Petition No. 5057 of 2004 in Madhya Pradesh High Court (Jabalpur) challenging Tribunal’s judgment dated 5.2.2002. During pendency of writ petition, the Bank and State of Madhya Pradesh arrived at a settlement pursuant whereto the respondent No. 5 paid a sum of Rs. 3.27 crores to the Bank in the year 2006 as a result whereof respondent No. 5 was discharged from all its liabilities by the Bank. 9. The Bank persuaded recovery proceedings and attached properties of petitioners on 4.12.2003. The details of properties attached by Bank vide attachment order dated 4.12.2003, as evident from Annexure-2 to the writ petition, is as under : 1. Land situated at 7, New Dewas Road, Indore measuring 180000 sq. ft. belong to Company. 2. Bungalow No. 93, situated at Survey No. 100, Cunningham Road Mhow, Indore belong to Shri Chander Seth (petitioner No. 1). 3. Plot No. 32, situated at Survey No. 1309/2, Gulmohar Colony Villlage Khajarana Indore measuring 5400 sq. ft. belong to Shri Govind Seth (petitioner No. 2). 10. Proclamation of sale of plot No. 32, at Survey No. 1309/2, Gulmohar Colony Villlage Khajarana Indore and Bungalow No. 93, situated at Survey No. 100, Cunningham Road Mhow, Indore was issued by Bank on 13.2.2007. Form 17 was also published on 20.4.2007. The petitioners filed objection against proclamation which was rejected vide order dated 18.5.2007 passed by Recovery Officer. The Recovery Officer while rejecting objection, in the penalti-mate paragraph of the order said : “7. I have heard the learned counsel and perused that material placed on record. It is correct to say that proclamation amount has not been mentioned in the sale proclamation. It is also correct to say that the name of C.D. No 01 is not mentioned in form No. 17 Notice for settling a sale proclamation but it’s not correct to say that bungalow No 93 situated at Survey No 100 Cunningham Road, Mhow belonging to C.D. No 02 Sh. Chander Seth cannot be sold being in cantonment area. It is also not correct to say that plot No. 32 situated at survey No 1309/02 Gulmohar colony belonging to Govind Seth cannot be sold in auction as the area of the plot has wrongly been published as 5400 S.q. fit without excluding the area of temple situated thereon. Chander Seth cannot be sold being in cantonment area. It is also not correct to say that plot No. 32 situated at survey No 1309/02 Gulmohar colony belonging to Govind Seth cannot be sold in auction as the area of the plot has wrongly been published as 5400 S.q. fit without excluding the area of temple situated thereon. The properties referred to above have been put to auction for recovering the dues of the bank in furtherance of recovering certificate issued by the Hon’ble DRT, Jabalpur and in accordance with procedure laid down under RBD Act 1993 and second schedule of the Income Tax Act 1961. With regard to disputed area of plot No. 32 Gulmohar colony Indore a corrigendum has duly been published in the local news papers as 4163 sq. fit similarly there is no bar in selling the property situated as Bungalow No 93 at Mhow in cantonment Board unless is same is objected by the Government of India. Prior to putting the aforesaid properties to auction sale scheduled to be held on 21.5.07 form No 17 . . . . . . . for C.D. No 02 to 04 that the proceedings are pending consideration before the other Courts is not tenable and not binding on the recovery proceedings. I find no merit in the objections filed by the C.D. No 02 to 04 and the same are hereby set-aside and dismissed. Similarly I have considered the stay application filed by the C.D. No 02 to 04 for staying the auction dated 21.5.2007 which is a reiteration of the objection filed by them. I do no find any ground to stay the auction of the aforesaid properties scheduled to be held on 21.5.2007 and the same is hereby set-aside and dismissed C.H. Bank to take further steps.” 11. The petitioners filed appeal under Section 30 of Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as the “Act, 1993”) before Tribunal. Simultaneously, petitioners also filed Writ Petition No. 7224 of 2007 before Madhya Pradesh High Court (at Jabalpur) wherein an interim order was passed on 21.6.2007 to the following effect : “Until further orders the respondents shall not issue sale certificate pursuant to auction held on 21.5.2007 of the property of petitioners.” 12. Since the auction purchaser Sri Ashish Kumar Gupta had deposited Rs. Since the auction purchaser Sri Ashish Kumar Gupta had deposited Rs. 1.20 crores, the High Court at Jabalpur also permitted him as ‘Intervenor’. The High Court disposed of the Writ Petition No. 7224 of 2007 on 30.7.2007 permitting parties to pursue the matter before Tribunal and till the appeal is decided, interim order dated 21.6.2007 was directed to continue. 13. The Tribunal allowed appeal vide order dated 27.8.2007 and set aside the order dated 18.5.2007 passed by Recovery Officer. It also ordered for refund of auction money deposited by auction purchaser Sri Ashish Kumar Gupta. The Recovery Officer was directed to proceed as per the observations made in the said order. 14. The Bank filed Appeal No. 862 of 2007 under Section 20 of Act, 1993 before the Appellate Tribunal. The matter of confirmation of auction sale was considered by Appellate Tribunal on 9.3.2009. From the order of Appellate Tribunal it is evident that none appeared on behalf of borrowers who also did not appear in person. Since the auction purchaser Sri Ashish Kumar Gupta insisted for confirmation of sale of property measuring 5400 sq. ft. though the area was modified vide corrigendum notification dated 16.5.2007 to 4163 sq. ft. to which Sri Ashish Kumar Gupta was not agreeable, one Sri Dhanpal Doshi, respondent No. 6 made an offer for Rs. 1.30 crores. The Appellate Tribunal vide order dated 9.3.2009 confirmed auction in favour of Sri Dhanpal Doshi and directed for refund of amount deposited by auction purchaser Sri Ashish Kumar Gupta with interest as per orders of High Court. The Recovery Officer issued consequential order vide letter dated 26.3.2009 and informed petitioner No. 2 with further direction to handover possession of property to respondent No. 6. 15. It appears that petitioners filed Writ Petition No. 2237 of 2009 before Madhya Pradesh High Court (at Jabalpur) alleging that order was passed by Appellate Tribunal ex parte since the Court was changed from Jabalpur to Allahabad without any notice to petitioners and there are several other illegalities in the order of Appellate Tribunal. The High Court dismissed the writ petition as withdrawn with liberty to petitioners to approach Appellate Tribunal by filing appropriate application for recall of ex parte order. Consequently a miscellaneous application was filed by these petitioners before Appellate Tribunal in Appeal No. 862 of 2007 requesting for recall/setting aside of the orders dated 5.2.2009, 19.2.2009 and 9.3.2009. The High Court dismissed the writ petition as withdrawn with liberty to petitioners to approach Appellate Tribunal by filing appropriate application for recall of ex parte order. Consequently a miscellaneous application was filed by these petitioners before Appellate Tribunal in Appeal No. 862 of 2007 requesting for recall/setting aside of the orders dated 5.2.2009, 19.2.2009 and 9.3.2009. The aforesaid application was filed on 31st August, 2009. Thereafter application dated 8.10.2009 was filed before the Bank offering a one time settlement proposing a total payment of Rs. 2 crores (1.31 crores towards release of auction property and rest for remaining balance dues). The Appellate Tribunal, however, has decided the appeal vide impugned order dated 16.10.2009 allowing appeal and upholding confirmation of sale in favour of respondent No. 6 made vide order dated 9.3.2009. 16. Sri G.P. Agarwal, learned counsel for the petitioners contended that the Appellate Tribunal has made out a new case and, therefore, has erred in law. He said that Appeal No. 862 of 2007 became infructuous and dead due to wrong/misdescription of property. It could not have been revived and yet to uphold auction despite such state of affairs is a sheer jurisdictional error vitiating the impugned order and entire proceedings. He placed reliance on the decision of Madras High Court in Oriental Bank of Commerce v. The Debt Recovery Appellate Tribunal, Chennai and others, AIR 2007 Mad 304 (para 11) and Apex Court’s decision in Mahendra Baburao Mahadik and others v. Subhash Krishna Kanitkar and others, AIR 2005 SC 1794 (para 47). He next contended that valuation of property is a vital issue. Parties cannot evaluate the property but the same has to be done in accordance with statutory provisions namely, the Security Interest (Enforcement) Rules, 2002 which requires valuation by an approved valuer. In this case no such valuation was made and this resulted in fundamental error going to the root of the matter vitiating entire proceedings. Reliance is placed on M/s Mahakal Automobiles and another v. Kishan Swaroop Sharma, AIR 2008 SC 2061 . He also refers to wrong mention of facts about representation and appearance of Sri S.R. Solanki and Dharampal Doshi on 5.9.2008. He contended that Sri S.R. Solanki did not file any application for impleadment as ‘Intervenor’ and this fact is also mentioned in the order-sheet. He also refers to wrong mention of facts about representation and appearance of Sri S.R. Solanki and Dharampal Doshi on 5.9.2008. He contended that Sri S.R. Solanki did not file any application for impleadment as ‘Intervenor’ and this fact is also mentioned in the order-sheet. This shows that the Presiding Officer of Appellate Tribunal has considered the matter with personal predilection and with bias. He also contended that there is violation of Section 25 of Act, 1993 as also Rules 53 and 67. He lastly contended that the Bank had already recovered 327 lacs from the State of Madhya Pradesh and chose not to proceed against principal borrower who possessed property worth Rs. 25 crores and despite petitioners’ request for one time settlement was not processed, showing entire proceedings wholly arbitrary, discriminatory and illegal. 17. Opposing the writ petition, Smt. Archana Singh, learned counsel appearing for the Bank pointed out that petitioner has given incorrect facts and, therefore, the writ petition deserves to be dismissed. The case of Bank is that it initiated recovery proceedings by filing an application before the Tribunal at Jabalpur against petitioners and respondent Nos. 4 and 5. The application was registered as Original Application No. 388 of 2000. It was for recovery of Rs. 4,55,34,698.43 with interest and other reliefs. Despite service of notice the petitioners failed to respond. The Tribunal decided the matter on 5.2.2002. The Bank was held entitled to recover Rs. 4,55,34,694.43 together with interest and costs from respondent Nos. 4 and 5. So far as the petitioners are concerned the Tribunal held that their liability is confined to the extent as detailed in para 6 of the judgment, i.e., to the extent of Rs. 40 lacs together with interest. The Tribunal also allowed interest at the rate of 16.5% with quarterly rests from 27.12.2000 till realisation. The Tribunal’s judgment in fact held held the petitioners liability being joint in share with respondent Nos. 4 and 5 to the extent of Rs. 40 lacs together with interest. The said judgment has attained finality. Consequently recovery certificate was issued by Tribunal and execution proceedings commenced. The property of petitioners mortgaged with Bank were as under : (i) Bungalow No. 93, situated at Survey No. 100, Cunningham Road, Mhow District Indore, (MP) belonging to Sri Chander Seth. 40 lacs together with interest. The said judgment has attained finality. Consequently recovery certificate was issued by Tribunal and execution proceedings commenced. The property of petitioners mortgaged with Bank were as under : (i) Bungalow No. 93, situated at Survey No. 100, Cunningham Road, Mhow District Indore, (MP) belonging to Sri Chander Seth. (ii) Plot No. 32 situated at Survey No. 1309/2, Gulmohar Colony, Village Khajarana, Indore, area measuring 5500 sq. ft. belonging to petitioner No. 2. 18. The Bank submitted valuation report of the aforesaid mortgaged property with the Recovery Officer. Based thereon Proclamation of Sale (Form No. 17) was issued. The petitioners did not file any objection. The sale proclamation, i.e., Form No. 17, alongwith auction sale notice was published in daily newspaper fixing 21.5.2007 as date of auction. 19. The petitioners for the first time submitted objection before Tribunal stating that despite pendency of winding up petition before the Company Court, Bank has initiated recovery proceedings. The legality and validity of final judgment was also questioned at that stage. It also contended that valuation of assets of Company, i.e., respondent No. 4 is approximately Rs. 22.47 crores out of which the entire liability of Bank could be satisfied. They also pointed out that out of area 5400 Sq. ft. situated at Gulmohar Colony there is is a temple over 1237 Sq. ft. yet the Bank has mentioned total area as 5400 Sq. ft. Lastly, it is contended that the property being situated in Cantonment area, cannot be sold. The objection was contested by the Bank. The Recovery Officer considered objections and by order dated 18.5.2007 rejected the same. The Bank, however, before auction sale of mortgaged property issued corrigendum in daily newspaper rectifying the area as 4163 Sq. ft. by excluding the area of temple. The auction was held on 21.5.2007. Total 65 bidders participated knowing well that the area of auction was 4163 Sq. ft. as per corrigendum dated 16.5.2007. None of the bidder raised any objection regarding reduction in area of the property put for auction. The highest bidder, Sri Ashish Kumar Gupta made his bid for Rs. 1.20 crores and deposited entire amount with the Recovery Officer. The petitioners thereafter filed Writ Petition No. 7224 of 2007, which was disposed of by Madhya Pradesh High Court (Jabalpur) vide judgment dated 30.7.2007 on the ground of alternative remedy. The petitioners filed appeal before the Tribunal. The highest bidder, Sri Ashish Kumar Gupta made his bid for Rs. 1.20 crores and deposited entire amount with the Recovery Officer. The petitioners thereafter filed Writ Petition No. 7224 of 2007, which was disposed of by Madhya Pradesh High Court (Jabalpur) vide judgment dated 30.7.2007 on the ground of alternative remedy. The petitioners filed appeal before the Tribunal. The appeal was allowed by Tribunal vide judgment dated 27.8.2007. The auction sale held on 21.5.2007 was set aside and the Bank was directed to return highest bidder’s amount deposited by him, i.e., Rs. 1.20 crores with interest. The Tribunal’s order was challenged in Appeal No. R-862 of 2007. During pendency of appeal the respondent No. 6 intervened by offering to pay Rs. 1.30 crores for the property and the case was adjourned to 9.3.2009. The petitioners ultimately failed to produce any buyer offering more price. The Appellate Tribunal on 9.3.2009 accepted proposal of respondent No. 6 and confirmed sale in his favour. In the meantime the petitioners again approached Madhya Pradesh High Court (at Indore) but the writ petition was dismissed as withdrawn. In the meantime High Court however stayed dispossession of petitioners. It is thereafter the order dated 16.10.2009 impugned in this writ petition has been passed by the Appellate Tribunal. 20. Smt. Archana Singh, learned counsel appearing for respondent-Bank contended that in the facts as stated above it is evident that petitioners are guilty of committing deault in payment of outstanding dues and since the dues are not disputed, the recovery proceedings initiated do not warrant any interference by this Court. 21. From the aforesaid facts and rival submissions, some aspects which are admitted to both parties are that the petitioners stood guarantor to certain loan advanced to the Company and had mortgaged two properties detailed above. The suit of Bank was decreed by Tribunal wherein recovery against petitioners to the extent it was mentioned in para 6 of the judgment was affirmed. It is in respect to a sum of Rs. 40 lacs with interest thereof. The judgment has attained finality having not been challenged by petitioners in any other higher appropriate forum. The petitioners did not make any efforts for payment of Rs. 40 lacs and interest thereon as decreed against them by Tribunal vide judgment dated 5.2.2002. The description of property mortgaged with Bank belong to petitioners as already detailed above is also not disputed. The petitioners did not make any efforts for payment of Rs. 40 lacs and interest thereon as decreed against them by Tribunal vide judgment dated 5.2.2002. The description of property mortgaged with Bank belong to petitioners as already detailed above is also not disputed. What is contended by them is that in auction proclamation the entire area of property mortgaged was shown though as a matter of fact some part of that property was occupied by temple which could not have been auctioned. Though it is true that in the order of attachment dated 4.12.2003 the Recovery Officer has specified the property of Company as well as petitioners and the entire dues has been mentioned, i.e., Rs. 4,56,84,698.43 together with interest and liability for the purpose of recovery and has neither been segregated as per the judgment of Tribunal nor has been stated separately but so far as the description of property is concerned, it is not the case of petitioners that there is any error therein. With respect to Plot No. 32 (situated at Survey No. 1309/2, Gulmohar Colony) the reserved price mentioned was Rs. 60 lacs for the entire area of 5400 Sq. ft. The fact that subsequently by corrigendum the area was reduced from 5400 Sq. ft. to 4163 Sq. ft. does not make any difference so far as petitioners are concerned, since it is not the case of petitioners that Bank also reduced reserved price or for that reason a lesser amount was offered by bidders. This Court really failed to understand the real grievance of petitioners. It is not their case that valuation of property shown by Bank was inadequate or that the auction was made for an inadequate lesser price or that he was ready to pay the entire dues but was not allowed to do so. 22. It appears that the petitioners knew well that the Bank is entitled to make recovery from the petitioners and a decree to this extent has also been passed by the Tribunal yet for one or the other superficial, technical or I may say hyper technical grounds, the petitioners persisted in their efforts to dispute auction proceedings and to prevent dispossession of petitioners from property in dispute. It is not a case where the Bank is guilty of wrong identification of a property or wrong specifications. The property in question was mortgaged with the Bank. It is not a case where the Bank is guilty of wrong identification of a property or wrong specifications. The property in question was mortgaged with the Bank. In para 27(1) of the writ petition the petitioners have said that only 4163 Sq. ft. of land was equitably mortgaged but attachment was made for 5400 Sq. ft. of land but there is nothing on record to fortify this fact that in the document of mortgage, the area property in question namely, Survey No. 1309/2, Gulmohar Colony is mentioned as 4163 Sq. ft. This has been said by petitioners without demonstrating anything and without taking such a plea at any point of time earlier before the authorities below. It appears that the total area of this property is 5400 Sq. ft. but excluding the area in which a temple exist, the Bank proceeded to auction the remaining area, i.e., 4163 Sq.ft. and the reserved price which was shown for larger area, i.e., 5400 Sq.ft. continued as such for lessor area, i.e., 4163 Sq.ft. Hence it actually did not prejudice the petitioners in any manner. 23. Be that as it may, here is not a case where auction has been challenged by auction purchaser on the ground that he/they was/were deceived by Bank inasmuch as bid was made allthrough under the impression that it is for 5400 Sq. ft. of land while as a matter of fact it was only 4163 Sq. ft. and thereby he/they stood deceived to make a much higher and excessive bid than that for which the property worth. The petitioners were not holding brief of auction purchaser. The petitioners did not bring on record anything to show that valuation of property in question measuring area 4163 Sq. ft. was much higher than the reserved price shown by Bank for the property in question or the price for which it was auctioned. 24. The petitioners were not holding brief of auction purchaser. The petitioners did not bring on record anything to show that valuation of property in question measuring area 4163 Sq. ft. was much higher than the reserved price shown by Bank for the property in question or the price for which it was auctioned. 24. It is true that no person shall be deprived of his property except the procedure prescribed in law but where procedure has been followed, particularly in a case where the person concerned is guilty of committing default in payment of outstanding dues to a financial institution, which has proceeded to realise the dues in accordance with law, and has also obtained a decree from the competent Court of law, yet such auction at the instance of defaulter or the judgment debtor can be vitiated without showing even an iota of substance or otherwise prejudice to the judgment debtor. 25. The petitioners though claimed before the Courts below that they can produce a buyer offering more than 1.30 crores for the property in question measuring only 4163 Sq.ft. but failed. Before this Court they did not make any such claim. 26. To suggest that the Appellate Tribunal has make out a new case is something which is hyper technical and in fact is not attracted in the case in hand inasmuch as the Appellate Tribunal found that the property though was attached measuring 5400 Sq.ft. but thereafter the ultimate auction took place only for 4163 sq. ft. without reducing the reserved price etc. The bidders did not object to such procedure followed by Recovery Officer though at the best it is the bidder who could have raised a complaint and not the petitioners who in fact are benefited by reduction of area in question but maintaining reserved price and thereupon the auction having been made by authorities concerned. Counsel for petitioners could not show as to how petitioners’ rights have been affected in any manner otherwise, in this case. 27. In Siddu Venkappa Devadiga v. Smt. Rangu S. Devadiga and others, AIR 1977 SC 980 the Apex Court held that the High Court shall not make out a new case for the parties which was never pleaded. The exposition of law is well settled. In fact the Apex Court followed its earlier decision in Trojan and Co. 27. In Siddu Venkappa Devadiga v. Smt. Rangu S. Devadiga and others, AIR 1977 SC 980 the Apex Court held that the High Court shall not make out a new case for the parties which was never pleaded. The exposition of law is well settled. In fact the Apex Court followed its earlier decision in Trojan and Co. Ltd. v. Nagappa Chettiar, AIR 1953 SC 235 and Raruha Singh v. Achal Singh, AIR 1961 SC 1097 wherein it was held that decision of a case cannot be based on grounds outside the plea of parties. But that is not the case here. No new case has been made out by authorities concerned. The petitioners initially tried to obstruct auction of their property by stretching upon the authorities concerned that the execution should proceed against the assets of Company and not petitioners. Having failed in their attempt to do so, they tried to obstruct auction by contending that property is situated in Cantonment area and, therefore, cannot be auctioned but here also they failed. Then they tried to linger on the matter in their self attempted compromise offers which did not find favour with the Bank since it was having a decree in its favour, and was more interested to proceed to recover the entire dues instead of making any compromise and shredding of some part of outstanding dues. 28. The judgment of Madras High Court in Oriental Bank of Commerce (supra) relied by learned counsel for the petitioners in its totality does not help him at all. There it was a dispute raised by auction purchaser when the auction sale was cancelled on the ground of wrong mention of description of property and under valuation. The auction sale took place on 11.1.2005. The Bank thereafter sent a letter to Recovery Officer stating that reserved price for Item No. 6 was mentioned as Rs. 2 lacs though the value thereof was Rs. 10 lacs and there appears to be a clear mistake/ oversight. Hence, the auction was not confirmed. The Recovery Officer by order dated 18.2.2005 cancelled auction sale on the ground that there was a wrong description of property. This order of cancellation was challenged by auction purchaser before the Tribunal but his petition was dismissed. 10 lacs and there appears to be a clear mistake/ oversight. Hence, the auction was not confirmed. The Recovery Officer by order dated 18.2.2005 cancelled auction sale on the ground that there was a wrong description of property. This order of cancellation was challenged by auction purchaser before the Tribunal but his petition was dismissed. Thereagainst he filed appeal before the Appellate Tribunal which was allowed and the Appellate Tribunal directed Recovery Officer to execute a sale-deed in favour of auction purchaser. Against this order the Bank came to High Court. It was held by Court : “12. When a Court sale is conducted, it should be free from any illegality or irregularity. Whenever it is brought to the notice of the Court that certain irregularity or illegality is crept in the sale proceedings, particularly before the confirmation of sale as found in these proceedings, it is incumbent upon the Court to rectify it by all means and to convey a better title to the auction-purchaser. Since Court itself conducts the sale, its duty is to apply its mind to the material factors, bearing on the reasonableness of the price offered. As per the settled principles, failure to apply its mind to this aspect of conduct of the sale may amount to material irregularity. Since the act of the Court shall harm no one, misdescription of the property also would be a material irregularity. The Court has to guard against ‘substantial injury’ to the auction-purchaser and other parties concerned. ‘Injury’ mans, loss, which is wrongful, and ‘substantial’ means, actual and not imaginary. ‘Irregularity’ means, not being in conformity to the Rules prescribed for regulating the auction sale. The word ‘material’ means real, not merely formal and academic.” 29. The decision has no application to the present case. Here the auction purchaser or the bidders have no grievance. It is the judgment debtor who for his own benefit is interested in prolonging the actual execution and, therefore, is trying all out to somehow hang on the execution proceedings even if he himself has nothing to do with the substance of matter or the issue he is raising. It is quite natural that when petitioners stated further litigating after execution sale, the highest bidder at a point of time lost patience and confidence and withdrew. It is quite understandable that a person who intend to spent a huge sum of Rs. It is quite natural that when petitioners stated further litigating after execution sale, the highest bidder at a point of time lost patience and confidence and withdrew. It is quite understandable that a person who intend to spent a huge sum of Rs. 1.20 crores should remain uncertain despite departing away such a huge amount whether he would be able to occupy the land in question or not. Fortunately, the Appellate Tribunal found another buyer who was also one of the bidder who offered even a further higher price and actually paid the same. In that way it can be said that litigation has benefited the petitioners and the bid price has gone up from Rs. 1.20 crores to Rs. 1.30 crores. This is a natural consequence also since with the passage of time the price of property in question must have gone up. 30. Be that as it may, in respect to auction proceedings, I do not find any substance in the submission that due to corrigendum made in respect to area of property in question, so far as petitioners are concerned, the auction proceedings can be said to be vitiated in law in any manner particularly when the auction purchasers have felt satisfied with the corrigendum and it has not reduced the auction consideration. 31. The further submission that there are some apparent mistakes in the proceedings, the Appellate Tribunal has acted with predilection, biased etc. are all unsubstantiated and vague allegations. They are simply mentioned to be rejected. 32. There are some authorities also relied by petitioners, namely, Gajadhar Prasad and others v. Babu Bhakta Ratan and others, AIR 1973 SC 2593 ; Balram v. Ilam Singh and others, AIR 1996 SC 2781 and M/s Mahakal Automobiles (supra) without specifying the issue he sought to fortify. I have perused the same carefully. None of the above authorities help the petitioners in any manner. 33. In Gajadhar Prasad (supra), valuation of property was mentioned as stated by decree holder. The Apex Court held, if the judgment debtor can show that a mechanical reliance on the valuation suggested by decree holder has resulted loss to judgment debtor, the auction sale would be illegal. In that case the price suggested by decree holder was also objected by judgment debtor but without applying mind the Court proceeded to mention such valuation suggested by decree holder. In that case the price suggested by decree holder was also objected by judgment debtor but without applying mind the Court proceeded to mention such valuation suggested by decree holder. It is in this context, in para 16 of the judgment, the Apex Court said : “16. In the case before us, the execution Court had practically accepted, as its own valuation, without indicating reasonable grounds for this preference,’ whatever the decree holders had asserted about the value of the property. It did not bother to seriously even consider the objections of the judgment-debtors. We think that the duty to consider what particulars should be inserted in the sale proclamation and how the sale ought to be conducted should be performed judicially and reasonably. If the execution Court does not, as it did not in the case before us, apply its mind or give any consideration whatsoever to the objections of the judgment-debtor, we think a material irregularity would be committed by the execution Court. It is not necessary for the execution Court to order the insertion of a judicially passed order in the sale proclamation itself, but, it should pass an order showing that it applied its mind to the need for determining all the essential particulars, which would reasonably be looked for by a purchaser, and which should be inserted in the sale proclamation. The order should show that it considered the objections, if any, of the decree-holders or the judgment debtors, as the case may be. It should not merely accept unhesitatingly the ipse dixit of one side. We think that the execution Court had not performed its duty fairly and reasonably in this case. After embarking on the difficult task of valuation, it rejected the judgment debtors’ figures by merely observing that they are exaggerated and practically accepted without hesitation whatever the decree holders submitted, but this valuation was proved to be incorrect judged by the results of auction sales taken as a whole.” 34. In M/s Mahakal Automobiles (supra) no notice was issued to judgment debtor regarding proclamation for sale and the objection was raised about valuation of property having caused prejudice to the judgment debtor and, therefore, Apex Court held that procedure prescribed in law was not followed. The Court held that compliance of Order 21 Rule 54 and Order 21 Rule 66 is mandatory. In para 7 of the judgment it held: “7. The Court held that compliance of Order 21 Rule 54 and Order 21 Rule 66 is mandatory. In para 7 of the judgment it held: “7. . . . . At each stage of the execution of the decree, when a property is sold, it is mandatory that notice shall be served upon the person whose property is being sold in execution of the decree, and any property which is sold, without notice to the person whose property is being sold is a nullity, and all actions pursuant thereto are liable to be struck down/quashed.” 35. In Balram v. Ilam Singh (supra) sale price was not deposited within the time stipulated by Order 1 Rule 85, hence the Court said that sale has become nullity. That is not the case here. In the present case the highest bidder deposited entire amount, i.e., Rs. 1.20 crores before the competent authority within time and, therefore, the auction sale was valid. It is only when the petitioners involve in the matter in further litigation before Tribunal and the highest bidder found difficulty in getting possession of the property in question for sufficiently long time, he lost his patience. The subsequent retraction would not vitiate sale already held validly. 36. The question in fact would be whether the procedure followed by Appellate Tribunal by accepting a subsequent offer made by a bidder before it though of higher price could have been accepted and the sale could have been confirmed. 37. The respondent-Bank has relied on a decision of Apex Court in Syndicate Bank v. State Officer and Manager (Recoveries) and others, 2007(14) SCJD 211 SC. The Apex Court having found that there is no other bidder in a position to match the offer, sale of property to such person deserved to be confirmed. Though as such there is no principle of law discussed or laid down therein but it can be considered to be precedent followed by the Apex Court in a peculiar facts and circumstances of the case to some extent similar to present one. 38. So far as this Court is concerned, it cannot be unworthy to mention that petitioners have approached this Court under Articles 226 and 227 of the Constitution. It is an extraordinary equatable remedy. 38. So far as this Court is concerned, it cannot be unworthy to mention that petitioners have approached this Court under Articles 226 and 227 of the Constitution. It is an extraordinary equatable remedy. The Court is not bound to entertain writ petition and interfere with the order impugned therein even if there is some kind of irregularity or illegality provided substantial justice has been done and any interference by the Court would be against justice, equity and good concious. The petitioners are defaulters, owe a huge amount of Bank. They did not bother to contest original application before Tribunal in the suit filed by Bank for recovery of its dues. The Tribunal’s judgment decreeing the suit of Bank attained finality wherein the petitioners liability was determined. The judgment of Tribunal has not been upset by any higher forum. It is not the case of petitioners that they challenged the said judgment at any stage. The property put to auction by Bank is one which admittedly was mortgaged with the Bank. The petitioners also failed miserably to show that the property in question has been sold for inadequate price causing any prejudice whatsoever to them. Can it be said that in the above circumstance it is a fit case where even if some technical faults with magnifying class may be noticed here and there, and that would justify interference by this Court in a writ jurisdiction. Equity is not a one way traffic. One who seeks equity, must do equity. A person who comes to the Court to seek equity should come with clean hands. If it appears to the Court that a nefarious, unscrupulous attempt is being made to endanger public funds in a public body, the Court in equity jurisdiction would not come to rescue to such blameworthy conduct of petitioners. Looking in the widest possible spectrum, to my mind it is not a fit case or even otherwise merits justifying interference of this Court with the impugned order. 39. The writ petition is accordingly dismissed. The respondent Nos. 3 to 6 shall be entitled to costs against petitioners which I quantify to Rs. 10,000/-. ——————