JUDGMENT
G.C. Bharuka, J.
1. This writ application has been filed by the petitioner for quashing of the orders as contained in Annexure ‘1’ dated 15-10-1990, Annexure ‘2’ dated 3-8-1991 and Annexure ‘3’ dated 21-11-1991 passed by the Certificate Officer, Darbhauga, appellate authority and the revisional authority respectively. The further prayer of the petitioner is for setting aside the auction sale of his lands measuring about 16 Kathas 3 Dhurs.
2. The petitioner had obtained a loan Rs. 1,79,000 from the respondent United Bank of India for purchasing a bus bearing No. BRG 6433 and as a security against the said loan, he mortgaged the said bus. He started plying the bus on 4th March, 1982. Since he had failed to make the repayments within the stipulated time, therefore, Certificate Case No. 1/1985-86 was instituted against him, which is pending before the Certificate Officer, Darbhanga, it appears that the aforesaid bus was seized in connection with the said proceedings. Therefore, the petitioner appeared in the certificate case in December, 1986 and prayed for release of his bus. Having failed to get any relief, he filed a writ application in this Court being C.W.J.C. No. 2752 of 1987 which was disposed of by order dated 4-11-1987 (Annexure 9) on the following terms:
(i) The bus in question shall be released in favour of the petitioner. The Certificate Officer, Darbhanga shall pass orders for release of the bus which is attached under its order. The petitioner shall make deposit of Rs 6,000 per month with the Bank after the the bus is actually released. The first payment will be made two months after the release. The petitioner shall, thereafter, go on depositing Rs. 6,000 for every month by the 15th of the month next following.
(ii) In case of two successive defaults or two default within one year in payments of Rs. 6,000 as indicated it will be open to the Certificate Officer to again attach the bus in question and continue the certificate proceeding.
(iii) The petitioner shall not transfer the vehicle in question to any person, until the entire amount of loan is liquidated, without consent of respondent No. 4. Further, the proceeding and become alive only in case of non-payment of instalments as indicated earlier. If necessary, the Certificated Officer will get the bus examined by the Motor Vehicle Inspector.
3. Pursuant to the aforesaid directions of this Court, the Certificate Officer by his order dated 10-11-1987 directed for release of the bus in favour of the petitioner subject to the condition if the petitioner fails to deposit the amount as per the order passed by this Court the bus may be again attached, But it seems that the petitioner did not take possession of the said vehicle on the ground that it was not in a running condition. He again moved this Court by filing the second writ application being C.WJ.C. No. 1301 of 1988 for quashing of the said order. This writ application was dismissed on 13-4-1988. Against this order of dismissal the petitioner filed a Special Leave Petition being S.L.P. No. 5636 of 1988 in the Supreme Court which was also dismissed on 11-7-1988. Thereafter the Bank filed a petition for sale of mortgaged bus and his landed property. Accordingly, the lands and the bus were auction sold for Rs. 6,101 and Rs. 25,500 respectively on 28-8-1988 and 3-10-1988. The petitioner filed Title Suit No. 74 of 1988 challenging the auction sale of the land but the same dismissed on 26-9-1988. Thereafter, the petitioner filed the third writ application in this Court on 13-10-1988 being C.W.J.C. No. 8098 of 1988 which after hearing the learned Counsels for the petitioner and the Bank was dismissed in limine by a Bench of this Court on 23-12-1988 by order Annexure 15. This was followed by filing of an application purported to be under Section 29 of the Bihar and Orissa Public Demand Recovery Act, 1914 (In short the ‘Act’ only) before the Certificate Officer, which has been rejected by the impugned order dated 15-10-1990 (Annexure ‘1’). This order has been affirmed by the appellate and the revisional authories as is evident from the orders contained in Annexures ‘2’ and ‘3’, referred to above. The Certificate Officer after considering the entire facts and circumstances and the multiple remedies availed by the petitioner for stalling the recovery proceedings against him, rejected the application for review, inter alia on the ground that (i) the High Court has dismissed the writ application challenging the auction sale, (ii) the auction purchaser was not made a party, (Hi) the application was filed beyond the period of limitation and no explanation was given for the same, (iv) the purchase price was not deposited which was the condition precedent for entertainment of such applications, (v) the petitioner was himself present at the time of auction sale and has not raised any objection with regard to the legality thereof and (vi) there was no material irregularity in the conduct of the said sale. The appeal filed against the said order was dismissed on merits and the revisional authorities refused to entertain the revision application since the petitioner has failed to deposit 40 per cent of dues, which according to him, was the prerequisite for entertainment of the revision.
4. Mr. Banerjee, learned Counsel appearing for the petitioner, has sought to assail the impugned orders on the ground (i) the aution of the bus and the sale of lands have been effected at shockingly low price, thus leading to nullification of the entire sale, (ii) no notice as required under Section 7 of the Act was served upon the petitioner and (iii) the in limine dismissal of an earlier writ cannot act as a bar in challenging the impugned orders at subsequent stages. In support of his last submission he has placed reliance on a Single Judge Judgment of this Court in the case of Ram Shohit Rai v. The State of Bihar and Ors. reported in 1989 BBCJ 141, wherein by placing reliance on the Supreme Court Judgment in the case of Daryao v. State of U.P. , it was held that the in limine dismissal of a writ application does not operate as res judicata against a subsequent writ application. In my opinion, the filing of second writ application no doubt, cannot be restricted on the ground of res judicata but then keeping in view the law laid down by the Supreme Court in the case of Sarguja Transport Service v. State Transport Appeallate Tribunal , such subsequent writ applications cannot be entertained on the ground of public policy in order to put a curb on the tendency of re-agitating the same cause repeatedly.
5. Apart from the above reasons, in my opinion, the Certificate Officer has given good reasons for rejecting the application filed under Section 29 of the Act. The section reads as under:
29. “Application to set aside sale of immovable property on ground of non-service of notice of irregularity.-(I) Where immovable property has been sold in execution of a certificate, the certificate holder, the certificate debtor or any person whose interests are affected by the sale, may at any time within sixty days from the date of the sale, apply to the Certificate Officer to set aside the sale on the ground that notice was not served under Section 7 or on the ground of a material irregularity in the certificate proceedings or conducting the sale:
Provided as follows:
(a) no sale shall be set aside on the ground of any such material irregularity unless the Certificate Officer is satisfied that the applicant has sustained substantial injury thereby ; and
(b) before the Certificate Officer passes an order setting aside a sale under this section he shall require the certificate debtor to pay the amount actually found due from him.
(2) Notwithstanding anything contained in Sub-section (1) the Certificate Officer may entertain an application made after the expiry of sixty days from the date of the sale if he is satisfied that there are reasonable grounds for so doing.
Proviso (a) of Section 29 (1) makes it clear that even if there be any material irregularity, still the sale cannot be set aside unless it is shown that the petitioner has sustained substantial injury. Therefore, even if it be presumed that the petitioner was not served with any notice under Section 7 strictly in accordance with law, still it is a matter of fact that he has appeared in the proceeding much before the auction sale in question and had availed all possible remedies to ventilate his grievances in respect of the actions taken against him till that date. Moreover, the auction sale was effected in his presence. It is not in dispute that pursuant to the order passed by this Court in C. W.J.C. No. 2752 of 19S7, the petitioner, was given opportunities to pay off the loan in easy instalments, but for the reasons best known to him, he did not avail the said opportunities and want on to content the proceedings on some or the other technical ground. Apart from the said facts the entertainment of an application under Section 29 for setting aside sale is subject to two conditions precedents, namely, (i) such application is filed within sixty days from the date of sale and (ii) the certificate-debtor pays the amount actually found due from him. In the present case admittedly as noticed by the respondent authorities, the the application was tiled beyond time without any good reason and the petitioner also failed to pay off the the amount actually found due from him.
6. Keeping in view the aforesaid facts and circumstances, in my opinion, it is not a fit case for interference by this Court under writ jurisdiction. The application is accordingly dismissed with cost assessed at Rs. 500 (Rs. five hundred) only.
