- (1.) D. K. Seth, J. In order to set aside the auction sale held on 3rd June, 1988 by respondent No. 4 being Annexure-3 to the writ petition, an application under Rule 285 (A) of the U. P. Z. A. and L. R. Act was filed by the petitioner which was disposed of by an order dated 22-12-1987 directing the Collector to determine the actual amount against deceased Paramhans after issuing a fresh notice and then to take appropriate action in the matter. The said order is Annexure-1 to the writ petition. Thereafter, the said auction dated 3rd June, 1988 had taken place.
(2.) LEARNED counsel for the petitioner has drawn my attention to the auction notice which specifies that the property of the deceased Paramhans was to be auctioned. It is not disputed that Paramhans was dead. LEARNED counsel for the petitioner contends that no auction could be held pursuant to notice issued to a dead person. His second contention is that nothing was due and owing by the said deceased Paramhans in respect of the agricultural loan which he had obtained from the State Bank of India for recovery whereof the auction had taken place. He points out to Annexure-5 which is a certificate granted by the State Bank of India certifying that Paramhans had repaid the entire dues on 25th April, 1986. His third contention was that the application was once dismissed for default and the same was restored by order dated 4-7-1984, which is Annexure-7 to the writ petition wherein the date for hearing was fixed as 26th September, 1989 whereas the impugned order was passed on 22-8-1989 more than one month earlier than the date fixed. Learned counsel for the petitioner has challenged the impugned order dated 22-8-1989 by which the petitioner's application under Rule 285-1 was dismissed. He contended that no objection raised in the application under Rule 285-1 has been dealt with the said order. Mr. Sesh Kumar, learned counsel for the respondent, on the other hand, contends that the writ petition is liable to be dismissed on account of suppression of facts, namely, that the petitioner made an application for recalling the order dated 22- 8-1989 and the same was rejected. He further contends that the deceased Param hans died issueless, therefore, there was no heir and as such notice was issued against the dead person. His further contention is that the petitioner cannot have any locus standi as she is not the heir of the deceased who has executed a will wherein he had stated that he is issueless.
(3.) AFTER having heard learned counsel for the parties, it appears that so far as the contention that the petitioner is guilty of suppression of fact, appears to be incorrect, inasmuch as the said fact has been disclosed in paragraph-11 of the writ petition. Mr. Sesh Kumar's contention is that unless a copy of the order is annexed, it cannot be treated as discloser of the fact, appears to be without any substance, even though as soon as the application for recalling is rejected in which the order that still holds the field is the order dated 22-8-1989 and the same having been challenged, it is not necessary to challenge the order by which the application for recalling was rejected, therefore, it is not at all necessary to annex a copy of the said order. I am, therefore, unable to agree with the contention of Mr. Sesh Kumar in that regard. So far as the question of heir of the deceased is concerned, Mr. Sesh Kumar contends that in the will the deceased had disclosed that he had no issue. He had bequeathed his property to his nephew. Therefore, it cannot be said that there was no heir. The nephew is also a heir. Therefore, the contention that in the absence of any heir authority was justified in issuing notice in the name of a dead person. In such a situation the notice ought to be published in the newspaper informing that in the absence of any heir no notice could be served on the heir of the deceased and therefore a general notice is being published informing all that the property of the deceased should be auctioned unless any objection is received. But nothing has been shown that any such steps were taken. Admittedly the proceeding, cannot continue against a dead person. It is not a case of escheat. It is a case of recovery of dues against the dead person, in connection whereof the property of the dead person is being sought to be auctioned. Therefore, notice to interested parties to the property is incumbent.;