S.D. Bajaj, J. - (1.) R.S.A. No. 1117 of 1986 entitled Bhupinder Singh v. The Primary Land Mortgage Bank, Hoshiarpur and others, was decided by this Court on 18th July, 1988. Respondent No. 4 auction purchaser Ajit Singh, who is in possession of the land sold at the auction filed S.L.P. No. 14165 of 1988 before Hon'ble the Supreme Court against the decision aforesaid wherein it was ordered by the Apex Court as follows : "The Special Leave Petition is permitted to be withdrawn with liberty to the petitioner to file an application under Order 41 Rule 21 of Civil Procedure Code, if he is so advised, before the High Court. Since it is pointed out that, the respondents and not appear before the High Court when the appeal was disposed of." In terms of the Supreme Court order aforesaid respondents No. 4 has filed Civil Misc. No. 160-C of 1989 in this Court for re deciding R.S. A. No. 1117 of 1986 after hearing him. Civil Misc. No. 159-C of 1989 has been moved therein for condonation of five months and seven days delay in filing it. Certificate of inability to attend the court on ground of personal illness issued by the learned counsel for respondent No. 4 at the relevant time has been brought on record through Civil Misc. No. 3824-C of 1989 filed under or section 151 of the Civil Procedure Code.
(2.) Alive to the situation that respondent No. 4 should not suffer for admitted lapse on the part of his learned counsel Mr. M.S. Kang, Advocate, in putting in appearance and representing his client before this Court on 18th July, 1988 and unmindful of the delay in filing the application under Order 41 Rule 21 of the Civil Procedure Code, parties have been reheard today on the merits of their respective claims after issuing notice to all concerned and obtaining their replies.
(3.) Mr. Suresh Amba, Advocate, representing respondent No. 4 urged i) that application filed by the appellant Bhupinder Singh before the Board was filed beyond the prescribed period of 30 days and was, therefore, rightly rejected by it on 4th June, 1980; (ii) that the sale having been confirmed by the Board on 4th June, 1980, civil suit No. 218 filed on 18th November, 1982 for getting it declared illegal was hopelessly barred by limitation, and iii) that the civil court had no jurisdiction to adjudicate upon and decide the controversy. All the three pleas raised on behalf of respondent No. 4 are being discussed hereinafter ad-seriatum : (i) Application for setting aside the sale dated 12th December, 1579 was filed by the appellant on 29th Dec., 1979 obviously less than 30 days from the date of sale. Plaintiff-appellant had also deposited the outstanding amount and other charges incurred by the Bank in bringing the property to sale as also 2% of the bid at the auction for payment to respondent No. 4. In terms of section 17(2) of the Punjab Cooperative Land Mortgage Banks Act, 1957, the Board was obliged to set aside the sale dated December, 1979. In case the application was filed before respondent No. 2 instead of the Board, respondent No. 2 ought to have returned it to the appellant for being presented before the Board or forwarded it to the Board himself. Confirmation of sale dated 12th December, 1979, by the Board on 4th June, 1980 is obviously in violation of section 17(2) of the Act and wholly without jurisdiction and was, therefore, declared illegal and a nullity by this Court on 18th July, 1988. Judgment, delivered by this Court on 18th July, 1988 would, therefore, be treated as a part of this order and the reasons set out therein for rejecting this plea would be deemed to have been assigned as reasons for reaching the same conclusion now; over again. (ii) Confirmation of sale dated 12th December, 1979 by the Board on 4th June, 1980 being illegal, without jurisdiction and a nullity could not give a start to one year prescribed period of limitation for filing civil suit. Civil suit No. 218 filed on. 18th November, 1982 for obtaining the desired relief has, therefore, to be treated as within limitation; more so when the order rejecting the prayer for setting aside the sale was made by the Registrar, Co-operative Societies afresh on 10th August, 1982. (iii) Basing his argument on the observation's made in Satnam Singh v. The Tarn Taran Primary Land Mortgage Bank, Ltd. Tarn Taran and anr., 1984 Punjab Law Journal 104 : 1984 R.R.R. 320 learned counsel for respondent No. 4 urged that civil court had no jurisdiction to entertain, adjudicate upon and decide civil suit No. 218 filed on 18.11.1982. The authority cited pertains to refund of loan by a member of the Co-operative Society and the observations made therein are of no relevance while deciding the maintainability of civil suit for declaration to get the sale dated 12th December, 1979 declared a nullity on ground of failure of the Board to exercise jurisdiction to set it aside vested in it by law in terms of section 17 of the Punjab Co-operative Land Mortgage Banks Act, 1957. A Full Bench of this Court held in State of Haryana and others v. Vinod Kumar and others, 1986 Punjab Law Reporter 161 : 1987 R.R.R. 81 that under section 9 of the Civil Procedure Code civil court has the jurisdiction to entertain, adjudicate upon and decide the civil suit instituted for this purpose. The observations made therein by the Full Bench read, "In our opinion, the bar created by the relevant provisions of the Act excluding the jurisdiction of the civil Courts cannot operate in cases where the plea raised before the civil Court goes to the root of the matter and would, if upheld, lead to the conclusion that the impugned order is nullity." ;