JUDGMENT : Harsh Kumar, J. 1. The instant appeal has been filed against the judgment and decree passed by IIIrd Additional District Judge, Bijnor on 28.7.1998 in Civil Appeal No. 112 of 1998 (Tajendra Singh and another v. Harcharan and another) setting aside the judgment and decree passed by the trial Court on 16.3.1988 in Civil Suit No. 257 of 1989 and decreeing the suit of plaintiffs. 2. The brief facts relating to the case are that defendant/respondent Nos. 1 and 2 filed Civil Suit No. 257 of 1989 in the Court of Civil Judge (Senior Division), Bijnor against defendant No. 4 for obtaining (i) a decree for setting aside the auction of Plot No. 80 area 13 Bigha 5 Biswas situated in village Turatpur Pargana Afzalgarh, Tehsil Nagina, District Bijnor and (ii) a decree for permanent injunction restraining defendant Nos. 1 to 4, their servants and agents from interfering in peaceful possession of plaintiffs over the land in dispute. 3. As per averments made in plaint, the plaintiffs and defendant No. 5 borrowed a sum of Rs. 48,000/- from State of Bank of India in the year 1979 for purchase of a tractor and upon default in payment of loan, the land in suit was auctioned without notice to plaintiffs, without following procedure laid down by law, and by conducting auction proceedings in surreptitiously and fraudulently at a place, distant from land in suit auctioned and different to the place mentioned in sale proclamation; that the alleged sale could have been confirmed only by the Collector, who has not passed any order of confirmation and since, the proceedings were conducted surreptitiously in fraudulent manner, the auction proceedings are liable to be set aside; that defendant No. 5 is in collusion with defendant Nos. 1 to 4. 4. The defendant Nos. 1 to 4 filed written statement denying the allegations of plaint and contending that the suit is liable to be dismissed with costs. 5. On parties pleadings trial Court framed as many as 12 issues and in view of its findings on various issues, dismissed the suit of plaintiffs with costs vide judgment and decree dated 16.3.1988. 6. 1 to 4 filed written statement denying the allegations of plaint and contending that the suit is liable to be dismissed with costs. 5. On parties pleadings trial Court framed as many as 12 issues and in view of its findings on various issues, dismissed the suit of plaintiffs with costs vide judgment and decree dated 16.3.1988. 6. Against the judgment and decree passed by the trial Court plaintiffs filed Civil Appeal No. 112 of 1998 before the District Judge, Bijnor, which was transferred to the Court of IIIrd Additional District Judge, Bijnor and was allowed by it vide impugned judgment and decree dated 28.7.1998 setting aside the judgment and decree dated 16.3.1988 passed by trial Court and decreeing suit of plaintiffs. Feeling aggrieved defendant Nos. 1 to 4 have preferred this appeal. 7. The instant appeal was admitted vide order dated 20.8.1998 on following 3 substantial questions of law, mentioned at page 7 of the memo of appeal, which are as under:- "1. Whether the suit of the plaintiffs was barred by section 11 C.P.C. and the lower Appellate Court was justified to reverse the decree of trial Court without considering the arguments raised on behalf of the appellant on this point? 2. Whether the suit of the plaintiffs respondent was barred by time and the lower Appellate Court was justified to reverse the decree of lower Appellate Court without considering this aspect of the matter? 3. Whether the lower Appellate Court was justified to reverse the decree, though fraud neither pleaded nor proved by the plaintiff?" 8. Heard Sri P.N. Saxena, learned Senior Counsel assisted by Sri Amit, learned Counsel for the defendants/appellants (hereinafter referred as defendants), Sri H.N. Singh, learned Senior Counsel assisted by Sri Som Veer, learned Counsel for the plaintiffs/respondents (hereinafter referred as plaintiffs) and perused the record as well as the lower Court record summoned in appeal. 9. Heard Sri P.N. Saxena, learned Senior Counsel assisted by Sri Amit, learned Counsel for the defendants/appellants (hereinafter referred as defendants), Sri H.N. Singh, learned Senior Counsel assisted by Sri Som Veer, learned Counsel for the plaintiffs/respondents (hereinafter referred as plaintiffs) and perused the record as well as the lower Court record summoned in appeal. 9. Learned Counsel for the defendants contended that lower Appellate Court acted wrongly and illegally in setting aside judgment and decree of dismissal of suit passed by the trial Court by allowing the appeal and decreeing the plaintiffs' suit and setting aside auction proceedings; that plaintiffs had raised objections before the S.D.O., which were rejected and appeal before the Commissioner was also dismissed; that the writ filed against the order of Commissioner was dismissed with liberty to file civil suit; that lower Appellate Court acted wrongly in holding that procedure prescribed by law was not followed by revenue authorities, in conducting the auction proceedings; that lower Appellate Court failed to consider that procedure of law laid down for "recovery of arrears of land revenue" is different from procedure for "recovery of money as arrears of land revenue"; that the procedure prescribed under sections 279 to 286 (1) of U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred as Z.A. Act) is applicable to cases of recovery of arrears of land revenue, but same procedure is not applicable in matters of recovery of unpaid amount of loan etc., recoverable as arrears., of land revenue, for which procedure mentioned only under sections 286 (2) of Z.A. Act is applicable; that for recovery of money as arrears of land revenue no notice is required to be served upon plaintiffs-respondents, who were borrowers and defaulters of Bank loan as section 286(2) does not contemplate service of any such notice; that plaintiffs and defendant No. 5 were joint borrowers and defendant No. 5 was duly served with notice of recovery under section 279 of Z.A. Act of which, his brothers, the plaintiffs had full knowledge; that the plaintiffs have neither pleaded nor proved fraud if any played on them in conducting of the auction proceedings; that the objections of plaintiffs with regard to alleged irregularities or mistakes in conducting the auction proceedings having been rejected by revenue courts, could not have been considered in civil suit, being barred by provisions of Rule 285 K of U.P. Zamindari Abolition and Land Reforms Rules, 1952 (hereinafter referred as Z.A. Rules); that the suit was barred by time as well as by provisions of section 11 of Civil Procedure Code and learned lower Appellate Court acted wrongly and illegally in not holding that the suit was barred by above provisions; that lower Appellate Court was not justified in reversing the decree passed by trial Court, in absence of pleadings or proof of fraud; that the impugned judgment and decree are liable to be set aside, judgment and decree passed by trial Court is liable to be restored and suit of plaintiffs is liable to be dismissed. 10. Per contra, learned Counsel for the plaintiffs supported the impugned judgment and decree and contended that the judgment and decree passed by lower Appellate Court are based on correct interpretation of provisions of law; that lower Appellate Court has rightly held that in conducting impugned auction, procedure prescribed by law was not followed; that it was not only proved from the evidence on record, but was also admitted to defendants-appellants auction purchasers that the auction of land in dispute did not take place at village Turatpur over land in suit, the place mentioned in alleged proclamation, rather was conducted at village Qadarbad, a distant place, which is against the spirit and procedure prescribed under law; that Rule 285A of Z.A. Rules provides that every sale under sections 284 and 286 shall be made either by Collector in person or by an Assistant Collector specially appointed by him in his behalf but Rule 285-J provides that order confirming the sale shall be passed by Collector only; that it is clear from above provisions that Assistant Collector was not empowered under law, to confirm the auction sale; that undisputably, in instant case, Collector has not passed any order confirming the auction sale and the order of confirmation of sale passed by Assistant Collector is wrong illegal and without authority which is no order in the eye of law and so the alleged auction sale may not be considered to have been confirmed in accordance with law and the proceedings of alleged delivery of possession over the disputed property are fake and fictitious having no legal value; that arguments advanced on behalf of appellant, that procedure for recovery of money as arrears of land revenue is confined only to provisions of section 286 (2) of Z.A. Act read with Rule 282 of Z.A. Rules and that provisions prescribed under sections 279 to 286 (1) of Z.A. Act applicable only to cases of "recovery of arrears of land revenue", but not in matters of "recovery of money as arrears of land revenue" is highly misconceived and mistaken; that the trial Court was misguided by defendants; that the appeal has been filed with absolutely false and baseless allegations wherein no substantial question of law arises and is liable to be dismissed with costs. 11. 11. Upon hearing learned Counsel for the parties and perusal of record as well as the lower Court record, which has been summoned in the appeal, I find that the submissions made on behalf of appellant that the procedure for "recovery of arrears of land revenue" is totally different from procedure "for recovery of money as arrears of land revenue" is entirely different has no force. It is noteworthy that legislation has laid down a procedure "for recovery of arrears of land revenue" and same procedure has been made applicable in matters "for recovery of certain types of money/dues which may also be recovered as arrears of land revenue." Hence the procedure for recovery of latter amount may not be different from the procedure which is prescribed for recovery of former, i.e. arrears of land revenue. Undisputably the provisions of section 279(1) clause (a) to (e) relate only to the cases of recovery of arrears of land revenue and have no application in the matters of recovery of any other amount/money as arrears of land revenue but for this reason it will not be correct to say that in matters of recovery of money as arrears of land revenue, the proceedings of auction sale may be conducted without notice to defaulters and without giving them opportunity to make payment of dues at any time before the date fixed for sale so as to avoid auction as provided under Rule 285-C of Z.A. Rules. 12. The lower Appellate Court in its elaborate findings has held that admittedly the auction proceedings were not conducted at village Turatpur over the land in dispute rather were conducted at a distant place in village Qadarbad which is at a distance of 3 Kms from land in suit as per plaintiffs and about V-A kms away as per contention of defendants. It is admitted to defendants that notice contemplated under section 279 of U.P. Zamindari Abolition and Land Reforms Act was served on defendant No. 5 who is brother of plaintiffs which indicates that service of notice of auction was mandatory on plaintiffs also, but no such notice was ever served on them. 13. The contention that since defendant No. 5 (one out of 3 borrowers/defaulters) was brother of other 2 so service of notice on plaintiffs could have been waived has no force. 13. The contention that since defendant No. 5 (one out of 3 borrowers/defaulters) was brother of other 2 so service of notice on plaintiffs could have been waived has no force. The Court is of considered view that service of notice of auction was mandatory on plaintiffs also in view of principles of natural justice and they could not have been deprived with the opportunity to make payment of dues by date fixed as well as from their rights over the land in suit without due service of notice. 14. In the case of Jagat Pal Singh v. State of U.P. 1994 RD page 429, this Court while considering the power to be exercised by Collector in confirming the sale under Rule 285-J of U.P. Zamindari Abolition and Land Reforms Rules, 1952 held that- "Now we take up the first point as to whether the Sub- Divisional Officer had power to confirm the sale or not. It has been seen in the earlier part of this judgment that under Rule 285-J of the U.P. Zamindari Abolition and Land Reforms Rules the Collector has to confirm the sale after expiry of the period of 30 days if the sale does not contravene the provisions of section 154 of the U.P. Zamindari Abolition and Land Reforms Act. The power to confirm the sale vests with the Collector and not with the Sub-Divisional Officer. Learned Counsel for the petitioner has argued that the Board of Revenue has delegated the power to the Assistant Collector/Sub-Divisional Officer on 17-1-1976 to perform the functions of the Collector which are performed by the Collector vide Revenue Board Notification No. 1/1-76(3)-6 dated 17-1-1976, a copy of which is Annexure-6 to the supplementary affidavit. A perusal of this notification goes to show that the Sub-Divisional Officer/Assistant Collector has only been authorised by this notification to conduct the auction proceedings under section 286 of the Zamindari Abolition and Land Reforms Act subject to the condition that the confirmation of sale shall be done by the Collector. The power of the Collector, when he acts under section 284 of the Zamindari Abolition and Land Reforms Act has not been conferred upon the Asstt. Collector/Sub-Divisional Officer by this notification. As seen in the earlier part of this judgment the sale in the present case has taken place under the provisions of section 284 of the Act and not under section 286. Collector/Sub-Divisional Officer by this notification. As seen in the earlier part of this judgment the sale in the present case has taken place under the provisions of section 284 of the Act and not under section 286. Therefore this notification dated 17-1-1976 will not apply to the facts of the present case. Moreover, there is another ground on the basis of which it cannot be said that the Assistant Collector/Sub-Divisional Officer has been invested with the power to confirm the sale. The last sentence of the notification dated 17-1-1976 clearly goes to show that the power of conducting sale proceedings under section 286 of the Act has been conferred upon the Assistant Collector/Sub-Divisional Officer with the condition that the confirmation of sale shall be done by the Collector, it means that only a power to auction the property or conduct the sale has been given to the Assistant Collector/Sub- Divisional Officer and not a power to confirm the sale which has been given to the Collector under the provisions of Rule 285-1 of the U.P. Zamindari Abolition and Land Reforms Rules. Therefore this notification does not, in any way, confer powers on the Assistant Collector/Sub-Divisional Officer, holding the charge of a sub-division, to confirm the sale. Power to confirm the sale still vests with the Collector." 15. The lower Appellate Court upon analyzation of evidence has found that Sohan Singh who allegedly participated in the auction proceedings and allegedly put a bid for auction has been produced as PW 3 and has stated on oath that he neither participated in auction nor gave any bid. Similarly Ram Bahal and Ram Singh, who allegedly made proclamation of impugned auction have been produced as PW 2 and PW 5 respectively and have stated on oath before the Court that they did not conduct any proclamation proceedings. Similarly Ram Bahal and Ram Singh, who allegedly made proclamation of impugned auction have been produced as PW 2 and PW 5 respectively and have stated on oath before the Court that they did not conduct any proclamation proceedings. In view of above evidence on record lower Appellate Court has rightly come to the conclusion that the proceedings of auction were conducted surreptitiously in fraudulent manner (i) without due notice to the plaintiffs, (ii) at a place distant from land in suit which was auctioned (iii) auctioned in camera without due proclamation or bid by general public and (iv) since the auction sale, which could have been confirmed only by Collector as per provisions contained in Rule 285-J of Z.A. Rules, has not been confirmed by Collector, the auction sale proceedings are illegal and are liable to be set aside. In any case even if the S.D.O. had been delegated with powers of confirmation of auction sale under Rule 285-J of Z.A. Rules, it will not validate the illegal and fraudulent auction proceedings conducted in contravention of procedure prescribed by law. 16. The lower Appellate Court in its findings in para 16 of impugned judgment has categorically narrated that a sum of Rs. 88274/- was due on plaintiffs and Rs. 226/- were collection charges total Rs. 88500/- which was minimum/statutory bid and the auction of huge plot of over 13 Bigha area was finalized on highest bid of defendants for same amount, which indicates that no actual auction did take place and auction proceedings were conducted in camera in surreptitious and fraudulent manner. 17. It is pertinent to mention that issue No. 9 regarding suit being barred by provisions of sections 11 of Civil Procedure Code and issue No. 10 regarding suit being barred by time, were decided by Trial Court against the defendants. The impugned auction is alleged to have taken place on 20.5.1986 for setting aside which auction sale, suit has been filed on 16.5.1989, with the contention that plaintiffs got knowledge of auction sale on 3.8.1986 and is well within prescribed period of limitation of 3 years. 18. The lower Appellate Court has not carved out any new case rather plaintiffs had taken specific plea in para 14 (g) and (h) of plaint about fraudulent proceedings and there is plenty of evidence in support of above allegations which are fully proved from the evidence on record. 19. 18. The lower Appellate Court has not carved out any new case rather plaintiffs had taken specific plea in para 14 (g) and (h) of plaint about fraudulent proceedings and there is plenty of evidence in support of above allegations which are fully proved from the evidence on record. 19. In view of discussions made above the Court is of the considered view that the auction of land in suit has been conducted (i) without serving the plaintiffs with notices of date of auction, (ii) without due proclamation at a place distant from land auctioned, (iii) in camera and not by public auction without opportunity of bid to persons from general public, (iv) by finishing auction of huge plot of over 13 Bighas on meager amount equivalent to statutory bid of amount which was due and (v) without confirmation by Collector, surreptitiously in secret/hidden and fraudulent manner against the procedure prescribed under law. U.P. Government delegates several powers of Collector to Deputy Collectors or Assistant Collectors, through notifications from time to time. All such notifications with regard to delegation of powers of confirmation of sale under Rule 285-J of Z.A. Rules were not brought before the Court. Even assuming delegation of such powers to S.D.O./Deputy Collector under Rule 285-J of Z.A. Rules and presuming him to be competent to confirm auction sale, the impugned auction sale which was conducted surreptitiously in secret/hidden and fraudulent manner at a place different from the land auctioned, without notices to plaintiffs/defaulter, even upon confirmation may not be legalized or regularized. 20. In view of discussions made above, the Court is of considered view that the learned Counsel for appellants has failed to show any illegality, incorrectness or perversity in findings recorded by lower Appellate Court. All the 3 substantial questions of law framed in this appeal on 20.8.1998 have no force and are decided against the defendants-appellants in favour of plaintiffs- respondents. The learned Counsel for appellants has failed to show any sufficient ground for setting aside impugned judgment and decree or for interfering with the findings recorded therein. 21. The appeal is devoid of merits and is liable to be dismissed with costs throughout. 22. The appeal is accordingly dismissed with costs throughout. The impugned judgment and decree are affirmed. 23. Interim order, if any, stands vacated. 24. 21. The appeal is devoid of merits and is liable to be dismissed with costs throughout. 22. The appeal is accordingly dismissed with costs throughout. The impugned judgment and decree are affirmed. 23. Interim order, if any, stands vacated. 24. Let the lower Court record be sent back to Court below alongwith the copy of the judgment, after preparation of decree.