JUDGMENT : (PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL) 1. These appeal arise out of a common judgment and order dated 4.08.2023 passed by the learned Single Judge in Special Civil Application Nos. 15060 of 2022 with Civil Application (For Vacating Interim Relief) No. 1 of 2022 with Special Civil Application No. 18857 of 2022 and hence, they have been heard together and are being decided by this common judgment. 2. Heard the learned counsel for the appellants and perused the record. The present appeals have been directed against the judgment and order dated 04.08.2023 passed by the learned Single Judge whereby the auction sale held in favour of appellant - Jignesh Natwarlal Dhameliya on 09.05.2022 was set aside being contrary to the Gujarat Co-operative Societies Rules, 1965 (hereinafter, referred to as “the Rules of 1965”). The learned Single Judge has returned the finding that once the auction sale was postponed, the bank was required to issue fresh auction notice inviting offers as per the prescribed procedure. It is also noted that auction, which was initially scheduled on 06.05.2022, was adjourned to 09.05.2022 without recording any reasons by the respondent No. 4 - bank (in LPA Nos. 1177 & 1178 of 2023). The provisions contained in Rules 119 and 120 of the Rules of 1965 have been noted by the learned Single Judge to note the procedure of sale by auction. 3. It is argued by the learned counsel for the appellants (in LPA Nos. 1177 & 1178 of 2023) that the learned Single Judge has erred in law in setting aside the auction holding that a fresh auction sale was required to be conducted for the reason that the sale which was scheduled on 06.05.2022, was rescheduled for 09.05.2022, and thus, held within a period 7 days from the scheduled date of auction in the sale proclamation which was published on 05.04.2022. All the bidders who participated in the auction held on 09.05.2022 had submitted their 10% of the EMD amount and necessary papers on 5.05.2022, one day prior to the scheduled date of auction, which was 06.05.2022 initially. It is submitted that in the sale proclamation dated 05.04.2022, it was clarified that the bidders were required to submit their papers and 10% of the EMD amount one day prior to the date of auction, to seek consideration of their bid in the public auction. It is submitted that in the sale proclamation dated 05.04.2022, it was clarified that the bidders were required to submit their papers and 10% of the EMD amount one day prior to the date of auction, to seek consideration of their bid in the public auction. The submission is that, the original petitioner / respondent herein did not submit his bid on or before 05.05.2022 and therefore, their disqualification on the date of auction i.e. 09.05.2022, cannot be said to be illegal. Reliance is placed on the decision of the Apex Court in Deendayal Nagari Sahakari Bank Limited and Another v. Munjaji and Others with Ratnakar S/o. Manikrao Gutte v. Munjaji and Others, (2022) 7 SCC 594 , to submit that in pari materia provisions of Rule 107 of the Maharashtra Co-operative Societies Rules, 1961, the Apex Court has held that once the auction sale was postponed for the reasons beyond the control of the competent authority, there was no requirement of issuance of fresh sale proclamation. 3.1 Noticing the above, we may extract the provisions contained in Rules 119 and 120 of the Rules 1965, which hold the field as on date: “119. Proclamation before sale. - Proclamation of sale shall be published by affixing a notice in the office of the Recovery Officer and the Taluka Office atleast thirty days before the date fixed for the sale and [the Recovery Officer shall cause the publication of the proclamation regarding the time and place of intended sale to be made by beat of drum in the village on the day prior to a fortnight and on two consecutive day previous to the date fixed for sale and on the date 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 the defaulter. The proclamation shall state the time 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. 120. 120. Sale by public auction.- 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 realisation of which 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 the 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 a case falling under the proviso to Rule 114 prior to the date of attachment of the application for execution. The time for 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 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 the 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 for a longer period than 7 days, a fresh proclamation shall be made, unless the judgment debtor consents to waive it. The sale shall be held after the expiry of not less than thirty days calculated from the date on which notice of the proclamation was affixed in the office of the Recovery Officer. Where a sale is so adjourned for a longer period than 7 days, a fresh proclamation shall be made, unless the judgment debtor consents to waive it. The sale shall be held after the expiry of not less than thirty days calculated from the date on which notice of the proclamation was affixed in the office 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: Provided that in cases where an encumbrance certificate is not obtainable owing to the destruction of the connected records, and affidavit from the village Patwari 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.” 3.2 A careful reading of Rules 119 and 120 indicates that the procedure for proclamation of sale fixing the date of auction with indication of time and place of intended sale has been provided in Rule 119, which states that the proclamation of sale shall be published by affixing a notice in the office of the recovery officer and the taluka office at least 30 days before the date fixed for the sale. In addition to the same, the recovery officer is required to cause the publication of proclamation regarding time and place of the intended sale to be made by beat of drum in the village on the day prior to a fortnight and on two consecutive day previous to the date fixed for sale as also on the date of prior to the commencement of the sale. It is also provided therein that where attachment is required before sale, such proclamation shall be made after the attachment has been effected. Notice shall also be given to the the decree holder and defaulter. It is clearly specified in Rule 119 that the proclamation shall state the time, the place of sale and specify as fairly and accurately the details with respect to the property as indicated in clauses (i) to (iv) of the said Rule. Notice shall also be given to the the decree holder and defaulter. It is clearly specified in Rule 119 that the proclamation shall state the time, the place of sale and specify as fairly and accurately the details with respect to the property as indicated in clauses (i) to (iv) of the said Rule. So far as the provisions contained in Rule 120 of the Rules of 1965, they pertain to a situation where sale by public auction is held. The provision therein states that it shall be open to the sale officer to decline to accept the highest bid, whether sale by a public auction is held, in a case where the price offered appears to be unduly low or for other reasons. It also states that the 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. It further provides that where a sale is so adjourned for a longer period than 7 days, a fresh proclamation shall be made. A careful reading of the above noted provision indicates that the period of 7 days as provided in Rule 120 refers to a situation where the sale is held by a public auction and the sale officer had to decline to accept the highest offer for the reasons that the price offered is unduly low or for some other reasons. It also refers to a situation the sale is held by public auction but for reasons recorded by the recovery officer or the sale officer in his discretion, the sale is adjourned to a specified date and hour. 3.3 In light of the above noted provisions, we may record that the fact situation in the instant case is completely different, wherein the sale scheduled on 06.05.2022 was not held and adjourned without recording any reasons, without specifying the date and time of sale, by passing an order in writing by the recovery officer. Moreover, the sale was not held at all and there was no reason for the recovery officer to adjourn the sale nor any such reason could be brought before us. Moreover, the sale was not held at all and there was no reason for the recovery officer to adjourn the sale nor any such reason could be brought before us. The learned Single Judge therefore, cannot be said to have committed any error of law in holding that as sale by public auction was not held at all on the date and time given in the sale proclamation dated 05.04.2022, a fresh proclamation as per Rule 119 was required to be published. We may further note that the petitioners herein are those who sought to participate in the auction held on 09.05.2022, they however, have been disqualified on the premise that they did not comply with the sale proclamation notice dated 05.04.2022, i.e., they did not deposit the 10% of the EMD amount on or before 05.05.2022. 3.4 For the above, the conclusion drawn by the learned Single Judge that the auction sale held on 09.05.2022 is contrary to the statutory rules, is found to be sound. The reference to the judgment of the Apex Court in Deendayal Nagari Sahakari Bank Limited and Another (supra) is misplaced, inasmuch as, in the said case, the auction sale was postponed on account of an interim order passed by the revisional authority on the application filed by the borrower, staying the auction proceeding scheduled on the date indicated in the sale proclamation. In the said situation, the Apex Court has observed that once the sale was required to be adjourned because of the stay order obtained by the borrower and the stay continued for more than 7 days which came to be vacated subsequently, the borrower cannot be permitted to take the benefit of his action of obtaining the stay and therefore, it is not open for him to contend that even if the sale was adjourned for more than 7 days due to the stay order obtained by him, there shall be a fresh proclamation. It may further be noted that the reason for rejection of the claim of the borrower in the said case was that the borrower cannot be given premium to his own action in getting the sale stayed by obtaining an order from the revisional authority and then pleading that a fresh sale proclamation ought to have been issued. 3.5 On the plea of the learned counsel for the appellants (in LPA Nos. 3.5 On the plea of the learned counsel for the appellants (in LPA Nos. 1177 and 1178 of 2023) that no prejudice could be said to have been caused to the original petitioner, who are simply prospective bidders, as they were present on the date of sale, i.e. 09.05.2022, suffice it to say that the petitioners have been non suited on account of non-submission of 10% of the EMD amount on or before 05.05.2022, a day prior to the initial date of sale, i.e. 06.05.2022. Had there been a fresh proclamation in accordance with the provisions of Rule 119, the petitioners would have got opportunity to furnish the EMD amount on the date prescribed in the said proclamation. The arguments of the learned counsel for the appellants that no prejudice had been caused to the petitioners therefore, is found misconceived. 3.6 Lastly, the contention of the learned counsel for the appellants (in LPA Nos. 1177 and 1178 of 2023) that there was no fault on the part of the appellants in participating in the sale held on 09.05.2022 and moreover, the fault if any lies, on the part of the bank, which has postponed the date of sale from 06.05.2022 to the given date i.e. 09.05.2022, the bank, therefore, be directed to refund the money deposited by the appellants in the auction sale held on 09.05.2022. Noticing the above, we provide that the auction sale held on 09.05.2022, without complying with the provisions of Rule 119 of the Rules of 1965 at the ends of the respondent bank, is liable to be set aside. With the setting aside of the auction sale, which is found to be illegal on account of the illegal action of the respondent bank, we provide that the bank is required to refund the entire sale amount including the stamp duty deposited by the appellants, deducting the expenses incurred by it from the amount to be refunded, along with the simple interest at the bank rate as applicable on the date of the refund. 4. With the above observations, the appeals stand disposed of. Connected civil applications shall stand disposed of, accordingly. 5. Insofar as the appeals filed by the bank being Letters Patent Appeal Nos. 4. With the above observations, the appeals stand disposed of. Connected civil applications shall stand disposed of, accordingly. 5. Insofar as the appeals filed by the bank being Letters Patent Appeal Nos. 1210 and 1211 of 2023, the contention of the learned counsel for the bank is that the appeals have been filed with a limited purpose so as to get a direction from this Court that the highest bidder namely the original petitioner be directed to deposit the amount quoted by him, by permitting him to participate in the auction proceedings. Suffice it to say that the prayer made in these appeals cannot be granted with the setting aside of the auction sale held on 09.05.2022. The appeals filed by the bank are, thus, dismissed. Connected application also stands dismissed.