Hon’ble Satyendra Singh Chauhan, J—Heard learned counsel for the petitioners and learned counsel for the respondents No.4 and 6.2. The present petition has been filed challenging the order dated 06.09.2007 passed by the Debts Recovery Appellate Tribunal in Appeal No.114 of 2007 inter alia on the ground that the petitioners were not associated in the auction proceedings although they were heirs of the deceased borrower (Smt. Asha Chaturvedi) and they were ready to deposit the amount as contemplated under Rule 60 of the procedure for Recovery of Tax II Second Schedule of Income Tax Act 1961.3. The amount due against the deceased-borrower could not be deposited by the petitioners under some misconception and their property was put to auction and the property was of much higher value but the same has been auctioned for a meagre amount. The recovery officer has not made sincere efforts as required under the provisions of the Act to derive the maximum price of the property which was put to auction. It is also stated that when petitioners came to know about the holding of auction proceedings, they proceeded to file W.P.No. 12655/2004 before this Court and the said petition was disposed of with the direction to the petitioners to deposit Rs. one Lakh with the opposite parties and to deposit the rest amount within two months. The said amount could not be deposited by the petitioners hence the auction proceedings ensued. The auction proceedings which ensued go to indicate that wrong Mohalla has been indicated in the sale proclamation notice published which has been issued for holding of auction.4. The submission of the learned counsel for the petitioners is that no information was given for holding the auction although they ought to have been associated and they could have come forward with the viable offer to save their property. The petitioners property which was situated in the market has been auctioned for a meagre amount.5. Learned counsel for the opposite parties, on the other hand, has submitted that the petitioners knew that the property of the deceased is being put to auction and they also approached this Court twice by means of filing two separate writ petitions, viz. W.P.Nos. 43603/2005 as well as W. P. No. 37898 Of 2007 before this Court and obtained various directions from this Court in regard to entrainment of the appeal. W.P.Nos. 43603/2005 as well as W. P. No. 37898 Of 2007 before this Court and obtained various directions from this Court in regard to entrainment of the appeal. The appeal has been filed or not it is not clear.6. The questions raised by the petitioners could not be taken into consideration on account of the fact that the petitioners did not deposit the requisite amount as contemplated under Rule 60 of the Income Tax Rules, therefore, the contention of the petitioners is that their case could not be considered on merit as they could not deposit the auction amount, hence the petitioners have challenged the sale proceedings before this Court.7. Heard learned counsel for the parties and gone through the record.The deceased Smt. Asha Chaturvedi(mother of the petitioners) took a loan of Rs. 9 Lakhs from the Union Bank of India for carrying the business of Sports goods but the Bank sanctioned only Rs. 7.75 Lakhs in the year 1994. In the year 1995 fire broke out in the shop and everything was reduced to ashes. The Bank initiated recovery proceedings against the deceased Smt. Asha Chaturvedi and ultimately a decree for recovery of Rs. 10,55,529.00 together with interest was passed against her. Smt. Asha Chaturvedi died on 3.2.2003.The Bank proceeded to initiate the recovery proceedings and issued sale proclamation in the name of deceased Smt. Asha Chaturvedi on 16.4.2003. It is stated that the petitioners have entered into One Time Settlement Scheme with the Bank and in pursuance thereof they deposited Rs. 2.85 Lakhs but in spite of the said deposit, the property of the petitioners was put to auction. Learned counsel for the petitioners states that one time settlement entered between the parties has been refused and neither the above amount has been adjusted nor the amount of Rs. 2.85 Lakhs has been returned to the petitioners.8. The evidence on record does not show that the amount of Rs. 2.85 Lakhs has been returned to the petitioners. What has emerged out from the record that the petitioners must have acquired knowledge in regard to the holding of auction proceedings and they have filed Writ Petition No. 12655 of 2004 before this Court and obtained an order and in pursuance thereof they deposited Rs. one Lakhs. 2.85 Lakhs has been returned to the petitioners. What has emerged out from the record that the petitioners must have acquired knowledge in regard to the holding of auction proceedings and they have filed Writ Petition No. 12655 of 2004 before this Court and obtained an order and in pursuance thereof they deposited Rs. one Lakhs. From the aforesaid it can not be said that they were not interested in returning the amount but in fact the benefit of the amount deposited by the petitioners with the Bank has not been given to the petitioners.9. The petitioners have raised various factual issues before the appellate court but they were not taken into consideration and the appeal was dismissed on technical ground. The petitioners have filed an appeal against the order of recovery and the said appeal has been filed under section 30 of the Debts Recovery Act and, therefore,the contention in short is as to whether the application of the petitioners could have been thrown out without giving any opportunity to the petitioners to deposit the amount which they were ready to deposit after the auction.10. The Court has appreciated only on account of fact that the property in question of the petitioners was of higher value and near about Rs. 40 Lakhs and it has been auctioned for a meagre amount of Rs 5 1/2 Lakhs. The said question is a question of fact which has not be taken into consideration. The petitioners have filed objections and the relevant evidence on record to appreciate the market rate etc. could not be considered.11. The argument of the learned counsel for the petitioners that the petitioners were misled by the opposite parties by making wrong publication of Mohalla for sale-proclamation has also got some substance, but the petitioners can not say that they were totally misled on account of wrong publication of Mohalla in the auction notice, but in fact they were partially misled. The argument is that since the property was situated in the heart of city, therefore, the actual bidders, who were interested in participating the auction proceedings were misled on account of which the proper price of the property can not be fixed as required under law.12. The argument is that since the property was situated in the heart of city, therefore, the actual bidders, who were interested in participating the auction proceedings were misled on account of which the proper price of the property can not be fixed as required under law.12. Without entering into all these questions which are required to be adjudicated by the appellate authority, learned counsel for the petitioners has agreed that the petitioners are ready to deposit the amount as contemplated under Rule 60 of the Income Tax Rules, therefore, the petitioners may be given an opportunity to contest all these pleas on merit.13. Learned counsel for the Bank strongly opposed the aforesaid prayer of the petitioners and has stated that at this belated stage the said prayer can not be accepted.14. Learned counsel for the opposite parties have stated that third party has been put in possession, therefore, the exercise of jurisdiction under Article 226 of the Constitution at this stage can defeat the ends of justice and the petitioners can not claim any benefit once the petitioners have failed to deposit the amount as required under Rule 60 of the Income Tax Rules.15. Be that as it may, without entering into the merits of the case at this juncture and considering the earnest endeavour on the part of the petitioners to deposit the requisite amount, the order dated 6.9.2007 is set aside and the matter is remitted to the Debt Recovery Tribunal with a direction to the petitioners to deposit the amount as required under Rule 60 of the Income Tax Rules within a period of six weeks from today. The objections of the petitioners subject to the aforesaid observations shall be considered and disposed of by the Debts Recovery Tribunal in accordance with law. The amount already deposited by the petitioners with the Bank for the purposes of recovery proceedings shall also be taken into consideration for the purpose of deposit.16. Writ petition is allowed subject to the aforesaid observations.(Petition allowed)***********