( 1 ) THIS appeal is directed against the judgment and order dated 12. 2. 1999 passed in Civil Misc. Writ Petition No. 5350 of 1999 in Re : Chandra Cold Storage v. State of U. P. and others, as well as against the order dated 23. 2. 1999 passed on the Modification Application moved in the writ petition aforestated.

( 2 ) RESPONDENT M/s. Chandra Cold Storage had taken certain loan from the Bank of India. Fatehgarh Branch, Farrukhabad which was repayable in instalments. It appears that on default being made in payment of the instalments, a writ of demand and citation was issued which was challenged in Civil Misc. Writ Petition No. 30427 of 1998. The writ petition came to be disposed of vide judgment and order dated 18. 9. 1998 thereby directing that the petitioner therein would deposit the entire amount of loan in tri-monthly four instalments. It was provided that the first instalment would be payable on or before 31. 12. 1998 up to which date the proceeding for recovery would remain stayed and upon deposit of the first instalment, seal and lock put on the petitioners cold storage would be removed by the District Magistrate and the recovery proceeding would remain stayed so long as the petitioner went on depositing the instalments. In the event of failure to deposit any of the instalments, it was provided that the stay order would cease to be operative. It appears that the respondent deposited a sum of Rs. 3. 00,000 but failed to deposit the entire outstanding dues whereupon the cold storage of the respondent was put to auction on 31. 1-1999 pursuant to an advertisement in that regard published in Amar UJala and dainik Jagran on 21. 11. 1999. The appellant herein was the highest bidder having offered Rs. 52,40. 000 for the purchase of the properties belonging to M/s. Chandra Cold Storage. He deposited a sum of Rs. 1 ,00,000 in cash and Rs. 12,10,000 in the shape of bankers cheque No. E. M. G. /c. No. 968833 dated 30. 1. 1999 on the fall of the hammer in his favour. The rest of the 3/4th amount, i. e. , Rs. 39,30. 000 is said to have been deposited on 10. 2. 1999 vide another bankers cheque.

( 3 ) THE writ petition giving rise to this Special Appeal came to be filed by the respondent cold storage challenging the aforestated auction sale. The learned single Judge after hearing the counsel for the parties directed that 3/4th of the outstanding amount of loan might be deposited by March 15, 1999 and the remaining l/4th outstanding amount of loan by April 30, 1999. This direction contained on stipulation that in the event of default to deposit 3/4th of the outstanding amount of loan, the sale already held would be confirmed after March 15, 1999. A clarification application was filed on the premises that it was not clear as to what amount was to be deposited under the orders of the Court. The said application came to be disposed of by the order dated 23. 2. 1999 with the direction that the petitioner, (respondent herein) would deposit 3/4th of the amount which was due to be paid by it with the respondent bank by the date fixed by order dated 12. 2. 1999. The two orders dated 12. 2. 1999 and 23. 2. 1999 are under challenge in this Special appeal.

( 4 ) WE have had heard Sri Y. K. Saxena for the appellant and Sri R. N. Singh, senior advocate for the respondent cold storage.

( 5 ) THE submissions made by Sri Y. K. Saxena, learned counsel for the appellant is three-fold. Firstly, that the writ petition giving rise to this special appeal was not maintainable in view of the fact that earlier the respondent cold storage had filed a writ petition challenging the recovery proceeding which had been disposed of by fixing certain instalments and the second writ petition challenging the auction proceeding was being based on the same cause of action was not maintainable : secondly, that the petitioner had an alternative remedy under the provisions of the u. P. Zamindari Abolition and Land Reforms Act. 1950 and Rules made thereunde