Hon'ble Jaspreet Singh,J.
(1) Heard Sri Prem Shanker Pandey, learned counsel for the appellants and Sri Q.H. Rizvi, learned Additional Chief Standing Counsel for the respondents State.
(2) This special appeal has been filed by the appellants, challenging the judgment and order dated 2.8.2019 passed in C.M. Application No. 95443 (W) of 2008 in re: Review Petition No. 336 of 2016 : Major Singh Vs. State of U.P. and others and Misc. Single No. 354 of 2008 : Hardayal Singh and 2 others Vs. State of U.P. and 4 others, whereby the learned Writ Court dismissed the writ petition no. 354 (M/S) of 2008; rejected the recall application filed against the order dated 26.10.2007 (C.M. Application No. 95443 (W) of 2008); and confirmed the order dated 26.10.2007 passed in review petition No. 336 of 2016.
(3) Brief facts of the case are that three persons, namely, Paramjeet Singh, Jagjeet Singh and Baj Singh had taken a loan from the Union Bank of India, Eye Hospital Road Branch, Sitapur for purchase of a truck. The Bank authorities sanctioned the loan on 19.12.2003 for an amount of Rs.2,65,000/-. As security for the said amount, Paramjeet Singh and Jagjeet Singh had mortgaged 2/3rd share of land of Khata no.247 situated at Village Mainiya, Pargana Chandra, Tehsil Misirikh, District Sitapur and Baj Singh had mortgaged 1/4th share of land of Khata No.211 situated at Village Prempur. When the loan amount was not repaid, the Union Bank of India issued a recovery certificate of Rs.3,50,998/- on 6.8.2003 against the joint borrowers Paramjeet Singh and Jagjeet Singh as also Baj Singh. An auction was held thereafter by the Naib Tehsildar on 5.8.2006 in pursuance of the recovery certificate issued by the Bank. One Major Singh participated in the said auction and as he being the highest bidder, the land has been auctioned in his favour by the Auction Officer on 5.8.2006. The entire amount of Rs.1,75,000/- was deposited by Major Singh before the Tehsildar, Misirikh, Sitapur. Major Singh, subsequently, came to know from Paramjeet Singh and Jagjeet Singh that the land in dispute would again be auctioned on 13.10.2006. In these backgrounds, auction purchaser, Major Singh, has challenged the action of the respondents to re-auction the land in question by filing writ petition No.6426 (M/B) of 2006, which was dismissed vide order dated 9.10.2006.
(4) After dismissal of the aforesaid writ petition, second auction took place on 13.10.2006, in which Major Singh participated and as he being highest bidder, his bid was accepted; the auction was confirmed in his favour; and Sale Certificate was issued. Thereafter, Paramjeet Singh and Jagjeet Singh filed Writ Petition No.5319 (MS) of 2006, wherein a wrong statement has been made that till the date of filing of the writ petition, the land had not been auctioned. On the basis of the aforesaid averments of the writ petition, the learned Writ Court disposed of the writ petition vide order dated 9.11.2006 by observing that if the writ petitioners deposits 25% of the outstanding amount within one month from the date of the order, their property would not be attached and put to auction in pursuance to the recovery citation dated 19.6.2006 and if auctioned, the same will not be confirmed and the same may be kept in abeyance.
(5) After disposal of the aforesaid writ petition, auction purchaser, Major Singh, filed review petition No. 336 of 2006, which was entertained. The learned Review Court, after appreciating the fact that the order dated 9.11.2006 has been obtained by concealing the material facts that land in question was already sold/auctioned on 13.10.2006 and the same was confirmed, disposed of the review petition finally by modifying the order dated 9.11.2006 to the extent that if the auction held on 13.10.2006 has been confirmed in favour of the review applicant, necessary documents be executed in favour of the review applicant. Thereafter, the appellants herein filed application for recall of the aforesaid order (C.M. Application No. 95443 (W) of 2008).
(6) During the course of arguments of the aforesaid recall application, it has been informed to the learned Writ Court that a writ petition, bearing no. 354 (M/S) of 2008, has also been filed by the review applicants/appellants herein, challenging therein the sale confirmation and accordingly, the application for recall of the aforesaid order and the writ petition no. 354 (M/S) of 2008 was connected and heard. The learned Writ Court, after appreciating the fact that appellants/applicants have resorted to misrepresentation before the learned Writ Court, rejected the recall application and also dismissed writ petition no. 354 (M/S) of 2008 vide impugned order dated 2.8.2019. The relevant portion of the judgment and order dated 2.8.2019 is reproduced as under :
"During the course of argument, learned counsel for the applicants has drawn the attention of this Court to the fact that the sale confirmation has also been challenged by them in a separate petition, namely, Writ Petition No.354 (MS) of 2008.
This writ petition being connected, was perused by this Court. It has been filed by Hardayal Singh along with Paramjeet Singh and Jagjeet Singh, praying for quashing of the sale held on 13.10.2006 and the order of confirmation dated 28.11.2006 passed by the Assistant Collector, Misirikh, Sitapur with respect to 2/3rd part of Khata no.247 ad-measuring 3.586 hectares situated at Village Mainiya, Pargana Chandra, Tehsil Misirikh, District Sitapur. A further prayer has been made that the Bank should be directed to take action against Baj Singh respondent no.4, who was one of the borrowers of the Bank along with the petitioners.
This writ petition was filed on 15.1.2008. From a perusal of the order sheet, it is evident that no interim order was passed by this Court in the writ petition, but it was directed to be connected with the record of Writ Petition No.6426 (MB) of 2006, which was filed by Major Singh, challenging the auction proceedings that were proposed to be held on 13.10.2006 and which was dismissed by this Court on 9.10.2006.
This Court finds from a perusal of the affidavit filed by the Bank and also the affidavit filed by the review applicants in Review Petition No.336 of 2006 that there was no concealment on the part of Major Singh. He had filed a copy of the order dated 9.10.2006 passed in Writ Petition No.6426 (MB) of 2006, dismissing the petition by making an observation that there were vague averments in the writ petition. This Court had rightly entertained the review petition and had passed an order on 26.10.2007, modifying its earlier order and directing confirmation of the sale held on 13.10.2006. Paramjeet Singh and Jagjeet Singh have resorted to misrepresentation before this Court as is evident from the facts as stated hereinabove.
The recall application against the order dated 26.10.2007 is rejected.
The sale having been confirmed in favour of Major Singh on the basis of an order passed by this Court on 26.10.2007 in the review petition and the same being registered in the office of the Registrar thereafter, the Writ Petition No.354 (MS) of 2008 is also dismissed."
(7) On due consideration so also the fact that the appellants have obtained the order dated 9.11.2006 (supra) by concealing the material facts that land in question was already sold/auctioned on 13.10.2006 and the same was confirmed, we are of the view that the learned Writ Court has not committed any error in passing the impugned order dated 2.8.2019.
(8) The special appeal has no merit and is, accordingly, dismissed.