JUDGMENT : ANIL KUMAR CHOUDHARY, J. 1. Heard the learned counsel for the appellants. 2. No one turns up on behalf of the respondents in-spite of repeated calls. Hence, this appeal is heard ex-parte. 3. This second appeal has been preferred under Section 100 of Code of Civil Procedure against the judgment and decree dated 27.08.2002 passed by the learned Additional Judicial Commissioner-cum-Spl. Judge-II, Ranchi in Title Appeal No. 36 of 1998 arising out of Title Suit No. 51 of 1981 whereby and where under, the learned first appellate court in its judgment of reversal has allowed the appeal and set aside the judgment and decree dated 22.04.1998 passed the learned Sub-Judge-IV, Ranchi in Title Suit No. 51 of 1981. 4. The case of the plaintiff in brief is that suit property is the ancestral property of the plaintiff. The plaintiff was sanctioned a loan of Rs. 8,000/- by the defendant no. 2 in the year 1974. The loan was to be repaid by the plaintiff within seven years with annual installment but the plaintiff fell ill and because of some other unforeseen incidents, he could not repay the annual installements. The defendant no. 1 in collusion with defendant nos. 4 and 5, who had greedy eyes over the property of the plaintiff and who wanted to take the advantage of the distress of the plaintiff; got initiated a certificate proceeding for realization of Rs. 3,402.77/- even before the expiry of seven years. The plaintiff next pleaded that no notice was ever tendered to him under Section 7 of Bihar and Orissa Public Demands Recovery Act nor were the provisions of rules made under the said Act in the matter of service of notice complied with. The plaintiff next pleaded that on the false pretext that the plaintiff has concealed all the movable assets, the defendants got issued warrant of arrest against the plaintiff and illegally got him arrested. The plaintiff was illegally sent to civil prison in Ranchi Central Jail where he was illegally detained from 06.06.1977 to 20.06.1977. The plaintiff then pleaded that the defendant no. 3 had no authority to issue warrant of arrest against the plaintiff nor had he any right to send the plaintiff to civil prison. The plaintiff then pleaded that he having no idea or knowledge of the certificate proceeding or any demand from the defendant no. The plaintiff then pleaded that the defendant no. 3 had no authority to issue warrant of arrest against the plaintiff nor had he any right to send the plaintiff to civil prison. The plaintiff then pleaded that he having no idea or knowledge of the certificate proceeding or any demand from the defendant no. 3 could not, supposed to have concealed his movable assets. The plaintiff then pleaded that he was ultimately released from the civil prison after his wife paid Rs. 200/-. Ultimately, the defendant nos. 1 and 2 in collusion with the defendant no. 3, 4 and 5 illegally and by fraudulent method put the suit properties to auction sale and the defendant nos. 4 and 5 purchased the said lands on a meagre amount of Rs. 11,000/- although the price of the land and the properties including the suit land at the relevant time was above Rs. 50,000/-. The plaintiff was informed about the auction sale only after the auction was held and the suit properties were purchased by the defendant nos. 4 and 5. Immediately, after coming to know of the certificate proceeding, the auction sale, the plaintiff rushed to the defendant no. 3 and obtained the certified copy of the order sheet of the certificate case. The plaintiff asserted and submitted that the certificate proceeding and the sale of the suit properties are vitiated by fraud and illegality inter-alia for the following reasons: (i) No notice was ever served or tendered on the plaintiff under Section 7 of the Bihar and Orissa Public Demands Recovery Act. (ii) The plaintiff was illegally detained and sent to civil prison in the midst of agricultural session even though the time to repay the loan did not expire. (iii) No notice was given to the plaintiff about the sale proclamation, nor was he given any information about it. The proclamation was not even properly published, so that there was no bidder except the defendant nos. 4 and 5, other bidders were set up by the defendant nos. 4 and 5. (iv) The sale proclamation was signed by the B.D.O. who had no authority to sign the proclamation. (v) The auction was to be held on 15.03.1978, but the auction was held on 14.03.1978. The order sheet on 14.03.1978 was written in the evening after the closing of the office. 4 and 5. (iv) The sale proclamation was signed by the B.D.O. who had no authority to sign the proclamation. (v) The auction was to be held on 15.03.1978, but the auction was held on 14.03.1978. The order sheet on 14.03.1978 was written in the evening after the closing of the office. (vi) Before the auction was to be held, the market price of the properties to be auctioned was to be fixed. But this was never done. (vii) In the sale proclamation, the case number was given as 2736 of 1976-77 whereupon the auction sale was held and the sale certificate was granted in Case No. 3736 of 1976-77. (viii) The market price of the properties auction sold was not less than Rs. 50,000/- but it was sold only at Rs. 11,000/-. (ix) The notice to the plaintiff informing him about the auction sale did not contain any case number. (x) The auction was to be conducted by the District Manager, but it was conducted by the Branch Manager of the defendant no. 2, without any authority. Hence, the plaintiff claimed that certificate Case and other steps taken thereunder are illegal. The plaintiff filed objection before the certificate officer against the auction sale and the certificate proceeding but the objection of the plaintiff was not entertained and the plaintiff thereafter filed the revision before the Chotanagpur Commissioner, who dismissed the revision on the ground that the plaintiff should not have come directly to him. The plaintiff prayed for the following relief: (i) After declaration that the certificate proceeding being Certificate Case No. 2736 of 1976-77 and/or certificate case no. 3736 of 1976-77 of the court of District Co-operative Officer, Ranchi is vitiated by illegality and fraud, all the steps and auction taken under the auction sale including the auction sale and auction purchase by the defendant nos. 1 to 5 of the suit properties are illegal and without jurisdiction which has not conferred any title of the suit properties to the defendant nos. 4 and 5. (ii) Consequent upon the said declaration, the plaintiff may be put in khas possession of the suit lands after evicting the defendant nos. 4 and 5 therefrom. (ii) (A) For mesne profit with regard to the profit and usufruct from the property and suit be determined and a final decree be passed awarding compensation. (iii) Cost of the suit. (ii) Consequent upon the said declaration, the plaintiff may be put in khas possession of the suit lands after evicting the defendant nos. 4 and 5 therefrom. (ii) (A) For mesne profit with regard to the profit and usufruct from the property and suit be determined and a final decree be passed awarding compensation. (iii) Cost of the suit. (iv) Any other relief or reliefs. 5. In their joint written statement, the defendant nos. 4 and 5 besides challenging the maintainability of the suit on various technical grounds further pleaded that the suit land has been duly sold in auction sale in certificate case no. 3736 of 1976-77. The plaintiff did not repay loan amount without any plausible reason. The initiation of the certificate proceeding by the defendant no. 1 was in discharge of the public function and no notice under Section 80 of the Code of Civil Procedure have been given to the defendant nos. 1 to 3 in respect of the acts done by them in discharge of the official functions. The suit of the plaintiff is barred against the defendant nos. 1 to 3 under Section 80 of the Code of Civil Procedure. These two defendants further pleaded that notice under Section 7 of the Bihar and Orissa Public Demands Recovery Act was duly tendered to the plaintiff who refused to receive the same and accordingly, the said notice has been duly served upon the plaintiff on refusal in the manner as required by the provisions contained in the rules made in that regard. The plaintiff having failed to raise any objection under Section 9 of the Bihar and Orissa Public Demands Recovery Act is precluded under the law to raise the objection which the plaintiff ought to have raised at the appropriate stage in the said certificate proceeding. These two defendants next pleaded that the process of the arrest of the plaintiff was duly made and the arrest of the plaintiff was in accordance with the provisions of law regarding the issue distress warrant as contained in Section 15 of the Bihar and Orissa Public Demands Recovery Act. These two defendants further pleaded that neither the arrest nor the detention of the plaintiff was in any way illegal and the defendant no. 3 had full right as a competent authority to issue warrant of arrest against the plaintiff. These two defendants further pleaded that neither the arrest nor the detention of the plaintiff was in any way illegal and the defendant no. 3 had full right as a competent authority to issue warrant of arrest against the plaintiff. The plaintiff had full knowledge of the certificate proceeding and with intent to delay the certificate proceeding against him, the plaintiff was evading appearance in the court and accordingly, the process of his arrest was duly issued and effectuated by the defendant no. 3 and the same cannot be characterized in any way as illegal and without jurisdiction. These two defendants next pleaded that the allegation of connivance against these defendants in the matter are wholly false and imaginary. The two defendants next pleaded that allegation of collusion, fraud and illegality are totally false and empty words without any meaning in law. No detail of the alleged fraud or the particular of the alleged collusion has been disclosed and the bid of these defendants being the highest upon the auction sale their bid was duly accepted by the court and these defendants were declared as purchaser of the properties sold in the certificate-sale. It is further pleaded that the alleged valuation of the properties is merely exaggerated and the plaintiff being fully aware of the sale and never filed any application for setting aside the auction sale under the appropriate provisions contained in the Bihar and Orissa Public Demands Recovery Act. 6. In the written statement, the defendant no. 3 besides challenging the maintainability of the suit on various technical grounds pleaded that it is false to say that the plaintiff was entitled to repay the loan at any time within a period of seven years from the date of disbursal of the loan but he had to pay annual equal installments in each year on seven installments and to repay the loan within a period of seven years on annual equatal installments. The defendant no. 3 further pleaded that the certificate proceeding was initiated when the plaintiff became defaulter in payment of loan of installment as the plaintiff failed to pay the equal annual installments. The defendant no. 3 next pleaded that the initiation of the certificate proceeding by the defendant no. 1 was in discharge of public duty. The plaintiff’s suit against the defendant no. 3 is barred by Section 80 of Code of Civil Procedure. The defendant no. 3 next pleaded that the initiation of the certificate proceeding by the defendant no. 1 was in discharge of public duty. The plaintiff’s suit against the defendant no. 3 is barred by Section 80 of Code of Civil Procedure. The defendant no. 3 then pleaded that the notice under Section 9 of Bihar and Orissa Public Demand Recovery Act has been provided under law to raise any objection which the plaintiff ought to have raised at appropriate stage in the said certificate proceeding by way of filing a written objection and not by filing a separate suit. The defendant no. 3 asserted that the arrest of the plaintiff is legal and as the defendant no. 3 issued warrant of arrest against the plaintiff when he concealed all the movable assets and the plaintiff’s arrest was in accordance with the provisions of law regarding the distress warrant as contained under Section 15 of the Bihar and Orissa Public Demand Recovery Act. The defendant no. 3 also pleaded that the plaintiff had full knowledge of the certificate proceeding and with intent to delay the proceeding, the plaintiff deliberately avoided his appearance in court and accordingly process of his arrest and his detention was duly issued by the defendant no. 3 and the same by no stretch of imagination can be said to be illegal or without any jurisdiction. The defendant no. 3 further pleaded that the bid of the defendant nos. 4 and 5 being the highest on the auction call was duly accepted by the District Manager, Land Development Bank, Ranchi who has authorized the defendant no. 3 to conduct the sale. Since the plaintiff avoided the payment, the defendant has no alternative but to put the property on auction sale. The defendant no. 3 next pleaded that the plaintiff being fully aware about the sale never filed a petition for setting aside the auction sale under the provision of Bihar and Orissa Public Demand Recovery Act. 7. On the basis of rival pleadings of the parties, the following fourteen issues were settled by the learned trial court: (i) Whether the suit is maintainable as framed? (ii) Whether there is any cause of action for filing the suit? (iii) Whether the suit is barred by the principles of waiver, estoppel and acquiescence? 7. On the basis of rival pleadings of the parties, the following fourteen issues were settled by the learned trial court: (i) Whether the suit is maintainable as framed? (ii) Whether there is any cause of action for filing the suit? (iii) Whether the suit is barred by the principles of waiver, estoppel and acquiescence? (iv) Whether the suit is barred under Section 46 of the Bihar and Orissa Public Demand Recovery Act? (v) Whether the suit is barred by Section 43 and 45 of Bihar and Orissa Public Demand Recovery Act? (vi) Whether the suit is bad for having been instituted without service of notice under Section 80 of Code of Civil Procedure? (vii) Whether the amount of the certificate case was secured by the registered deed dated 18.12.1974 executed by the plaintiff in favour of the defendant no. 1? (viii) Whether it was fraud for recovery of the said amount under the provision of the Bihar and Orissa Public Demand Recovery Act and not by resorting to Order XXXIV of Rule 6 of the Code of Civil Procedure? (ix) Whether the auction of the disputed land was illegal under the provision of Bihar and Orissa Public Demand Recovery Act? (x) Whether the certificate case no. 3736/1976-77 was illegal, deceitful and whether the disputed land was sold by auction illegally and in deceitful manner? (xi) Whether the right and title acquired by the defendant nos. 4 and 5 by the auction conducted illegally and deceitful manner by the defendant no. 4 and 5 is illegal? (xii) Whether the plaintiff is entitled to possession of the disputed land in this suit? (xiii) Whether the plaintiff in this suit in view of interim relief is entitled to a decree for compensation against the defendant nos. 4 and 5? (xiv) Whether the plaintiff is entitled to the relief apart from the reliefs prayed for in this suit? 8. The learned trial court first took up issue no. (vii), (viii) and (ix) for consideration and after discussing the evidence in the record both oral and documentary came to the conclusion that the loan given by the defendant no. (xiv) Whether the plaintiff is entitled to the relief apart from the reliefs prayed for in this suit? 8. The learned trial court first took up issue no. (vii), (viii) and (ix) for consideration and after discussing the evidence in the record both oral and documentary came to the conclusion that the loan given by the defendant no. 1 to the plaintiff was a public debt and the same can be recovered by the provision of Bihar and Orissa Public Demand Recovery Act, 1914 by arrest of the loanee or attaching the property mortgaged and there was no necessity for filing any mortgage suit under Order XXXIV of Code of Civil Procedure and thus decided the issue no. (vii), (viii) and (ix) against the plaintiff and in favour of the defendants. The learned trial court next took up issue no. (iv) and after considering the materials in the record held that the suit is not barred by Section 46 of the Bihar and Orissa Public Demand Recovery Act, 1914 and decided this issue in favour of the plaintiff and against the defendant. The learned trial court next took up issue no. (v) and after considering the materials in the record came to the conclusion that the suit is barred by Section 45 of the Bihar and Orissa Public Demand Recovery Act and decided this issue in favour of the defendant and against the plaintiff. The learned trial court then took up issue nos. (x) and (xi) together and after considering the evidence in the record came to the conclusion that the evidence in the record is insufficient to establish that by giving a wrong number of the certificate case to the plaintiff or by conducting the auction on a wrong date in a deceitful manner, the disputed land was sold and decided the issue nos. (x) and (xi) against the plaintiff. The learned trial court next took up issue no. (vi) and came to the conclusion that the defendant no. 3 who was the District Co-Operative Officer-cum- Auction Officer was a government officer and comes within the definition of “Public Servant.” Hence, before institution of the suit, a notice under Section 80 of Code of Civil Procedure which was mandatory but the same having not been issued; the suit having been instituted without issuing notice under Section 80 of Code of Civil Procedure is bad in law. The learned trial court thereafter took up issue no. (i) and (iii) and came to the conclusion that the suit is not maintainable and the plaintiff has failed to prove that the suit is barred by principle of waiver, acquiescence and estoppel and decided these issues against the plaintiffs. Lastly, the learned trial court took up issue no. (xii) and (xiv) and came to the conclusion that the plaintiff is not entitled to recovery of possession of the disputed land nor he is entitled to compensation in view of any interim relief against the defendant nos. 4 and 5 and dismissed the suit on contest. 9. Being aggrieved by the judgment and decree passed by the Sub-Judge-IV, Ranchi in Title Suit No. 51 of 1981 dated 22.04.1998, the plaintiff filed Title Appeal No. 36 of 1998 in the court of learned Judicial Commissioner, Ranchi and the same was ultimately heard and disposed of by the learned first appellate court by the impugned judgment and decree. 10. The learned first appellate court framed the following four points for determination: (A) Whether the suit is barred due to non-sending of notice u/s 80 of the Civil Procedure Code? (B) Whether the Appellant is able to prove the ingredients of fraud as pleaded in the plaint and certificate proceeding being certificate case no. 2736 of 1967-77 and/or certificate case no. 3736 of 1976-77 as provided in the Code of Civil Procedure and the conduct of the Respondent Nos. 1 to 3 is based on fraud and in collusion with the respondent nos. 4 and 5 and auction sale and entire proceeding of certificate case is behind the back of Appellant or not? (C) Whether suit u/s 46 of Bihar and Orissa Public Demand Recovery Act on point of fraud is maintainable in the civil court or not? (D) Whether the Appellant is intentionally sent to the Civil Prison by the order of the Respondent No. 3 in collusion with Respondent Nos. 4 and 5 and thereafter, released from the civil prison on petition of S/o Appellant is deemed to be the service regarding the initiation of certificate proceeding to the Appellant and further the Appellant is entitled for compensation on account of false imprisonment or recovery of possession of the schedule property sold to Respondent Nos. 4 and 5 in auction sale and Respondent Nos. 4 and 5 in auction sale and Respondent Nos. 1 to 3 should have filed suit under Order XXXIV Rule 5 of C.P.C. for recovery? 11. The learned first appellate court first took up the point for determination no. (c) which is whether suit u/s 46 of Bihar and Orissa Public Demand Recovery Act on point of fraud is maintainable in the civil court or not and concurred with the finding of the learned trial court in this respect that the suit is maintainable under Section 46 of Bihar and Orissa Public Demand Recovery Act. The learned first appellate court committed a perversity in as much as by observing that in Ext. A which was the registered mortgage bond, it has been mentioned that the loan amount be repaid after expiry of seven years and within the period of mortgage, there is no agreement or clause mentioned in the deed that in case of default, the amount will be repaid according to the provision of Public Demand Recovery Act. It is pertinent to mention here that Ext. A which is the registered mortgage bond envisages that the plaintiff has to pay the entire loan amount of Rs. 8,000/- by way of annual installment, the details of which has been mentioned in Schedule of the bond itself and the entire amount was to be liquidated within seven years. It has also been mentioned therein that in case, the plaintiff defaults in payment of any of the annual installment, the defendant no. 1 will be entitled to recover the entire dues. The learned first appellate court opined that instead of resorting to the provision of the Public Demand Recovery Act, the mortgage suit under Order XXXIV Rule 5 of Code of Civil Procedure ought to have been filed. The learned first appellate court also referred to the judgment of Hon’ble Patna High Court in the case of Sawar Mal Choudhary vs. State Bank of India, 1986 (0) PLJR 660 , paragraph no. 28 of which reads as under: “28. Lastly, one must notice, in fairness to Mr. Varma, his firm stand that even on the doctrine of pith and substance, Art.15 of the Schedule I would come well within the ambit of Entry 43 of the Concurrent List III. 28 of which reads as under: “28. Lastly, one must notice, in fairness to Mr. Varma, his firm stand that even on the doctrine of pith and substance, Art.15 of the Schedule I would come well within the ambit of Entry 43 of the Concurrent List III. He rightly pointed out that by now it is well settled that entries in the lists are not meticulously exclusive and may well overlap each other. The recovery of monies due State owned banks is in pith and substance a public demand and even if these incidentally overlap an element of banking, it would squarely remain within the sweep of Entry 43 of the Concurrent List. Even accepting the argument of the petitioners at the highest, merely because such a recovery may marginally trench on the subject of banking, it would, in no way, detract from its validity because in pith and substance this still remains to be public demand as such.” Wherein it was inter-alia held by the Division Bench of Hon’ble Patna High Court that the recovery of monies due to the State owned banks is in pith and substance a public demand and even if these incidentally overlap an element of banking, it would squarely remain within the sweep of Entry 43 of the Concurrent List. In the case of Birendra Kumar Das vs. State of Bihar, 2001 (3) BBCJ 149 also relied upon by the learned first appellate court, in the facts of that case, when the question for consideration was as to whether the proceeding before the certificate officer can be vitiated in respect of loan by State Bank of India in absence of written instrument in terms of Item 15 of schedule I, the Hon’ble Patna High Court remanded the matter to the certificate officer for consideration of the said question. The learned first appellate court thereafter observed that as the respondent failed to convey to the first appellate court that the State Government through publication in official gazette, has empowered the Collector to recover the loan by the process as provided in Bihar and Orissa Public Demand Recovery Act, it came to the conclusion that on this score alone the certificate proceeding is vitiated. The learned first appellate court concluded that the plaintiff has established fraud as though the value of the property auction sold was not less than Rs. The learned first appellate court concluded that the plaintiff has established fraud as though the value of the property auction sold was not less than Rs. 50,000/- it was sold for a meagre amount of Rs. 11,000/-. The auction sale was not advertised in newspaper and the bidders apart from the defendant nos. 4 and 5 were set up by the respondent nos. 4 and 5. The learned first appellate court also considered the subsequent criminal case instituted against the plaintiff in which he was convicted by the learned trial court but as the learned appellate court acquitted him, the first appellate court observed that, it could be one of the reasons to show that there was enmity between the plaintiff and the defendant no. 4. The learned first appellate court also considered that though the auction sale was to be held on 15.03.1978 but the same was held one day before i.e. on 14.03.1978. So this goes on to show a fraudulent act on the part of the defendants and observed that as it is well settled that fraud vitiates most solemn proceeding of the court of justice and the decree so obtained cannot stand. Hence, the civil court can treat such decree to be a nullity. The learned first appellate court also took note of the fact that notice under Section 7 of Public Demand Recovery Act was never served on the appellant and this is another fraud as per the opinion of the learned first appellate court. The learned first appellate court then considered that none of the defendants were ‘Public Officer’ as defined under Section 2 (17) (h) of the Code of Civil Procedure. Hence, no notice under Section 80 of C.P.C. is required before the institution of the suit. The learned first appellate court also considered that the certificate proceeding was initiated for Rs. 3,402.77/- which was part of the loan amount and there is no material in the record to suggest as to what happened to the rest of the loan amount and this is an another reason for showing collusion between the defendant nos. 1 to 3 and defendant nos. 4 and 5 and by discussing thus the learned first appellate court set aside the entire proceeding and certificate case no. 2736 of 1976-77 and/or certificate case no. 3736 of 1976-77 of the court of the respondent nos. 1 to 3 and defendant nos. 4 and 5 and by discussing thus the learned first appellate court set aside the entire proceeding and certificate case no. 2736 of 1976-77 and/or certificate case no. 3736 of 1976-77 of the court of the respondent nos. 1 to 3 along with auction sale of the disputed land and directed the respondent nos. 4 and 5 to give possession of the schedule land to the appellant within three months from the date of judgment failing which the appellant has right to take possession with the process of the court and further directed to give Rs. 1,500/- as costs by way of compensation and damages to the appellant and set aside the judgment and decree passed by the Sub-Judge-IV in Title Suit No. 51 of 1981 except in respect of issue no. (iv) which was confirmed by the learned first appellate court. 12. At the time of Admission of this appeal vide order dated 22.01.2003, the following substantial question of law was formulated: (i) Whether the judgment and decree passed by the lower appellate court is vitiated in law for non consideration of the important evidence and also non consideration of relevant law? 13. Learned counsel for the appellants submits that the impugned judgment and decree passed by the learned first appellate court is perverse as the learned first appellate court has ignored the statute by way of Chapter VIA with Section 44-A to 44-O inserted by Act 39 of 1982 and which shall be deemed to have been inserted from 25.07.1968. Section 44S of which reads as under: “44S. Collector to make recoveries during certain period: (1) During such period as the State Government may, by general or special order, notifying in the official Gazette, it shall be competent for the Collector, on application being made to him in this behalf by a Land Development Bank, to recover all sums due to the Bank, including the cost of such recovery. (2) The Collector or any person specially authorised by him in this behalf, shall recover all sums due to a Land Development Bank in the following order and manner, namely: (a) from the borrower as if they were in arrears of land revenue due by him. (2) The Collector or any person specially authorised by him in this behalf, shall recover all sums due to a Land Development Bank in the following order and manner, namely: (a) from the borrower as if they were in arrears of land revenue due by him. (b) out of the land for the benefit of which the loan has been granted as if they were arrears of land revenue in respect of that land; 25/46. (c) from a surety, if any, as if they were arrears of land revenue due by him. (d) out of the property comprised in the collateral security, if any according to the procedure for the realisation of land revenue by the sale of immovable property other than the land on which the revenue is due. (3) the provisions of this section shall be subject to any tenancy law for the time being in force.” 14. It is next submitted by the learned counsel for the appellants that the learned first appellate court has committed the act of perversity by misinterpreting the Ext. A which is a registered mortgage bond executed by the plaintiff in favour of the defendant no. 1 that in the said registered bond, it has been mentioned that the loan amount be paid lump sum after expiry of seven years which is not a fact as the recital of Ext. A categorically shows that the loan was to be paid in equal annual installments within a period of seven years and there was also agreement between the plaintiff and the defendant no. 1 that in case, the plaintiff defaults in payment of any of the annual installments then the defendant no. 1 will be entitled to recover the entire amount remaining. It is next submitted by the learned counsel for the appellants that the learned first appellate court committed a grave error of law by holding that even the defendant no. 3 is not a public officer though as per Section 2 (17) (h) of Code of Civil Procedure every officer in service or pay of the Government, or remunerated by fees or commission for the performance of any public duty is a “public officer” and the defendant no. 3 who is the District Co-Operative Officer-cum-Auction Officer indisputably was in service and in pay of the Bihar Government at the relevant time. Hence, certainly, the defendant no. 3 was a public officer. 3 who is the District Co-Operative Officer-cum-Auction Officer indisputably was in service and in pay of the Bihar Government at the relevant time. Hence, certainly, the defendant no. 3 was a public officer. Hence, the suit having been instituted without serving notice as envisaged under Section 80 of Code of Civil Procedure, the suit is certainly bad. It is next submitted by the learned counsel for the appellants that though the plaintiff has pleaded fraud and collusion but what the plaintiff adduced in evidence were some alleged irregularities in the auction sale though such allegations were even not having any legs to stand. Hence, the same miserably fall short of any fraudulent act by any of the parties and the question of collusion therefore does not arise. It is then submitted by the learned counsel for the appellants that under Section 44 S of the Bihar Cooperative Societies Act, 1935 as amended by Act 39 of 1982 and which shall deemed to have been inserted from 25.07.1968 as from that very date, there were ordinances and one of which was placed before the learned first appellate court and in view of Section 57 of the Evidence Act, the learned first appellate court ought to have taken notice of the said ordinances as well as statute as amended by Act 39 of 1982 by which the Collector was appointed on application made on behalf of the land development bank to recover all sums of dues to the bank including the case of such recovery from the borrower; as if they (default of such land development banks) were in arrears of land revenue due to him. So the same amounts to a public debt. It is further submitted by the learned counsel for the appellants that the learned first appellate court also committed perversity by holding that the notice was never served upon the appellant though vide order sheet dated 24.05.1977 of the certificate case concerned shows that the service report of the notice has been received by the plaintiff, which is the certified copy of the order sheet of a public document and marked Ext. L for identification. Hence, it is submitted by the learned counsel for the appellants that the impugned judgment and decree passed by the learned first appellate court be set aside and the judgment and decree passed by the learned trial court be restored. 15. L for identification. Hence, it is submitted by the learned counsel for the appellants that the impugned judgment and decree passed by the learned first appellate court be set aside and the judgment and decree passed by the learned trial court be restored. 15. Having heard the submissions made at the Bar and after going through the materials in record, it is pertinent to mention here that it is well settled that a suit filed against a public officer without notice under Section 80 of Code of Civil Procedure is not maintainable as has been held by the Hon’ble Supreme Court of India in the case of Coal Mines Provident Fund Commissioner vs. Ramesh Chander Jha, AIR 1990 SC 648 . 16. Section 2 (17) (h) of the Code of Civil Procedure, 1908 envisages that every officer in the service or pay of the Government, or remunerated by fees or commission for the performance of any public duty is a public officer. Undisputedly, the defendant no. 3 the District Co-Operative Officer-cum-Auction Officer was a permanent employee of the State of Bihar in the service and pay of Bihar Government. Without doubt he was paid salary by the State of Bihar for the performance of any public duty. Thus the defendant no. 3 the District Co-Operative Officer-cum-Auction Officer is a Public Officer. Hence, this Court has no hesitation in holding that the learned first appellate court committed an act of perversity by holding that none of the defendant nos. 1 to 3 are public officers and hence, no notice under Section 80 of Code of Civil Procedure is required. 17. This Court is of the considered view that besides this, the learned first appellate court also committed error of record by attributing that in Ext. A which was the mortgage bond, wherein it was mentioned that the loan amount be repaid in lump sum after expiry of seven years which is not the fact; as per the terms and conditions of the Ext. A between the plaintiff and the defendant no. 2. A which was the mortgage bond, wherein it was mentioned that the loan amount be repaid in lump sum after expiry of seven years which is not the fact; as per the terms and conditions of the Ext. A between the plaintiff and the defendant no. 2. As according to Exhibit-A the loan amount was to be repaid on equal annual installments within a period of seven years and this Court also finds that the learned first appellate court was not correct in mentioning that notice under Section 7 of Public Demand Recovery Act was ever served upon the plaintiff though the order sheet dated 24.05.1977 of the certificate case which has been marked Ext. L it has been mentioned that the service report of the notice is available in the record. The observation of the learned first appellate court that though the auction sale was to be held on 15.03.1978 but the same was held before that on 14.03.1978 is contrary to the evidence in the record because as per Ext. D which is the notice for auction sale, it has categorically been mentioned that time and date for auction sale was at 03:00 p.m. on 14.03.1978. 18. Because of the discussions made above, this Court is of the considered view that certainly as the defendant no. 3 was a public officer and the suit has been instituted without service of notice as envisaged under Section 80 of Code of Civil Procedure, 1908 against the defendants hence, the suit of the plaintiff was not maintainable and the learned first appellate court committed an act of perversity by allowing the appeal, and the killing the suit of the plaintiff by erroneously holding that none of the defendant no. 1 to 3 are public officers. 19. Accordingly, the sole substantial question of law is answered in the affirmative by holding that the judgment and decree passed by the lower appellate court is perverse and vitiated in law for non-consideration of the materials available in the record by arriving at the wrong conclusion that the defendant no. 3 is not a public officer, hence, no notice under Section 80 of Code of Civil Procedure is required to be served before institution of the suit. 20. Accordingly, the impugned judgment and decree 27.08.2002 passed by the learned Additional Judicial Commissioner-cum-Spl. 3 is not a public officer, hence, no notice under Section 80 of Code of Civil Procedure is required to be served before institution of the suit. 20. Accordingly, the impugned judgment and decree 27.08.2002 passed by the learned Additional Judicial Commissioner-cum-Spl. Judge-II, Ranchi in Title Appeal No. 36 of 1998 being not sustainable in law is set aside and the judgment and decree passed by the learned Sub-Judge-IV, Ranchi in Title Suit No. 51 of 1981 dated 22.04.1998 is restored. 21. In the result, this second appeal is allowed ex-parte but under the circumstances without any costs. 22. Let a copy of this Judgment along with the Lower Court Records be sent to learned court concerned forthwith.