- (1.) S. U. Khan, J. Heard learned Counsel for the parties.
(2.) THIS is plaintiffs first appeal arising out of original suit No. 50 of 1968. The suit was dismissed in part on 13. 6. 1986 by IVth Additional District Judge, Azamgarh. The main relief sought in the plaint of the suit was for declaring void auction sale dated 25. 6. 1968 in favour of defendants No. 7 to 16. (Fifty five acres of land was sold to these 10 persons separately, area wise. Defendant No. 11-Rudra Pratap Singh did not deposit the amount, hence sale in his favour did not materialise. According to the plaint allegations in brief, plaintiff as Karta of Joint Hindu Family consisting of himself and defendants No. 5 and 6, Sri Sashi Bushan Gupta & Sri Sachindra Nath Gupta obtained a loan of Rs. 1, 22, 000/- (one lac twenty two thousand only) from defendants No. 2 and 4, Collector, Azamgarh and Secretary, Board of Revenue, Lucknow for improvement of Joint Hindu Family, Mukundpur Farm having an area of 183. 722 acres situate in Village Mehanajpur and Gaibpur of Tehsil Sagri, District Azamgarh after mortgaging Zamindari rights of the said Joint Family in 34 villages of Tehsil Sagri, 9 villages of Tehsil Ghosi and one village of Tehsil Sadar, Districtazamgarh. The loan was taken on 22. 3. 1948. Ultimately, property of the plaintiff was sold for realization of the aforesaid loan along with interest on 25. 6. 1968. The sale was afterwards confirmed. Several grounds to challenge the auction sale dated 25. 6. 1968 were taken in Para 17-D of the plaint. The main grounds are mentioned below: (i) The auction purchasers did not deposit the purchase money within the time prescribed by Rules 285- D and 285-E of UP. Zamindari Abolition and Land Reforms Rules, 1952. Under the first Rule, 25% of the amount of bid is to be deposited forthwith and under second Rule remaining amount is to be deposited on or before 15th day from the date of the sale at the District Treasury or any Sub-Treasury. Both the Rules are quoted below: "285-D. The person declared to be the purchaser shall be required to deposit immediately twenty five per cent of the amount of his bid, and in default of such deposit the land shall forthwith be again put up and sold and such person shall be liable for the expenses attending the first sale and any deficiency of price which may occur on the re-sale which may be recovered from him by the Collector as if same were an arrear of land revenue. 285-E. The full amount of purchase money shall be paid by the pur chaser on or before the fifteenth day from the date of the sale at the district treasury or any sub-treasury and in case of default the deposit, after the expenses of the sale have been defrayed therefrom, shall be forfeited to Gov ernment and the property shall be re-sold and the defaulting purchaser shall forfeit all claim to the property, or to any part of the sum for which it may be subsequently sold. " (ii) Plaintiff had given notice to the defendant No. 2, Collector, Azamgarh under Section 80, C. P. C. , which had been received by Collector before 25. 6. 1968, hence auction sale was illegal. (iii) The sale was void by virtue of Section 291 of U. P. Z. A. & L. R. Act (since repealed in 1976) (iv) Sale is vitiated by fraud, illegality and material irregularity, which sub stantially injured the plaintiff and there were irregularities and mistakes in publishing and conducting the sale. (v) That on the date of the sale, plaintiff did not owe anything to defendant (vi) Plaintiff was not allowed to inspect the sale file. (vii) Sale was conducted without permission of the Commissioner. It was also prayed in the plaint that lease executed on 7. 6. 1988 be also declared null and void. Adecree of permanent injunction restraining the defendants Collector and State from realizing any further amount of the loan from the plaintiff was also sought along with decree for rendition of account of the attached properties in between 1952 to 1965.
(3.) HOWEVER, during arguments in this appeal learned Counsel for appellant mainly confined his argument to non-deposit of 3/4th amount in sub-treasury within 1. 5 days from sale. Sale of immovable property in realization of arrears of land revenue or such dues, which are recoverable like arrears of land revenue, can be challenged under Rule 285-I of the U. P. Z. A. & L. R. Rules. Under the said Rule, within 30 days from the date of sale, application may be made to the Commissioner to set aside the sale on the ground of some material irregularity or mistake in publishing or con ducting the sale due to which applicant has sustained injury. Under Rule 285-K, it is provided that: "if no application under Rule 285-I is made within the time allowed there for, all claims on the ground of irregularity or mistake in publishing or con ducting the sale shall be barred : Provided that nothing contained in this rule shall bar the institution of a suit in the Civil Court for the purpose of setting aside a sale on the ground of fraud". In the instant case, plaintiff filed objections under Rule 285-I, which were rejected.;