ORAL JUDGMENT

1. The present Second Appeal under Section 100 of Civil Procedure Code (hereinafter referred to as 'CPC') has been preferred against the judgment and decree dated 28.10.1997 passed by the learned Joint District Judge, Banaskantha, in Regular Civil Appeal No. 20 of 1988 whereby the decree passed by the trial Court in Regular Civil Suit No. 24 of 1978 came to be set-aside and the suit filed by the plaintiff came to be dismissed.

2. The appellant is the original plaintiff and respondents are the original defendants. The parties are referred to in this matter as per the character assigned to them before the learned trial Court.

3. The brief facts of the matter are as under:

3.1 The plaintiff had purchased land bearing Survey No.

175 of village Golgaon from the public auction. The said auction was held by the Special Recovery Officer of the Land Development Bank. The said action was held as the defendant No.2 failed to repay the loan amount to the bank and hence under the provisions of the Gujarat Co-operative Societies Act, the said auction was held by the Special Recovery Officer on 19.12.1972. In the said auction, as the plaintiff being the highest bidder, his proposal was accepted and the sale was sanctioned by the Bank under Section 136 of the Gujarat Co-operative Societies Act and the possession of the land was handed over to the plaintiff by accepting the amount and initially sale certificate was issued by the Bank on 12.2.1973 under Section 138 of the Act.

3.2 The original defendant No.2 thereafter in May, 1974, preferred an Application to the Government alleging that the public auction of his land was fraud and has prayed to set-aside the auction. The Deputy Secretary, Revenue Department vide order dated 12.12.1977, in exercise of its revisional power under Section 211 of the Bombay Land Revenue Code allowed the said application and set-aside the order dated 12.2.1973 of the Special Recovery Officer and remanded the matter for fresh auction.

3.3 Being aggrieved by the said order, the plaintiff had preferred Regular Civil Suit No.24 of 1978 before the Court of learned Civil Judge (Senior Division), Banaskantha@Palanpur and prayed for permanent injunction of restraining the defendants from disturbing his possession and further prayed to stay permanently the implementation of the order passed by the Deputy Secretary, Revenue Department.

4. The State Government resisted the suit by filing written statement at Exh-28, inter alia, contending that the suit is not maintainable. It has also raised the contention that in absence of statutory notice under Section 80 of CPC, suit is not tenable. It was also contended that if it is proved that the statutory notice was served, the same is illegal and invalid. That the suit is not within the limitation. The State Government has also denied the facts alleged by the plaintiff. It was contended by the State Government that in fact subsequently, it was noticed that mal- practice was done in the said public auction regarding certain conditions i.e. compulsory requirements of public notice was not performed and the public auction was fraud and, therefore, the sale by auction was cancelled and order was made for re-auction of the sale of the land. It has contended that the order passed by the Deputy Secretary is legal and valid and prayed for dismissal of the Suit with costs.

5. The heirs of the original private defendants have also filed written statement at Exh-51, inter alia, contending that the suit is not maintainable and the alleged public auction was not performed legally. It is contended that in collusion with the Bank Officers, the alleged auction was held on 19.12.1972 and papers of public auction was got-up and it was fraudulent exercise of the power by the concerned Officer. The private defendants have supported the order of the Deputy Secretary, Revenue Department and prayed for disposal of the suit with costs.

6. On the basis of the pleading of the parties, the trial Court