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Issues Involved:
1. Validity of the court sale held in contravention of Section 35 of the Bengal Money-Lenders Act, 1940. 2. Whether non-compliance with Section 35 of the Act renders the sale a nullity or an irregularity. 3. Applicability of Order XXI, Rule 90 of the Code of Civil Procedure to set aside the sale. 4. Waiver of mandatory statutory provisions by the judgment-debtor. Detailed Analysis: Issue 1: Validity of the Court Sale Held in Contravention of Section 35 of the Bengal Money-Lenders Act, 1940 The appeals raised the question of the validity of the court sale held in contravention of Section 35 of the Bengal Money-Lenders Act, 1940. The facts in both appeals involved the execution of multiple mortgages and subsequent court proceedings to enforce the first mortgage. The judgment-debtor failed to pay the decretal amount, leading to the sale of properties. The first respondent filed applications to set aside the sales under Order XXI, Rule 90 of the Code of Civil Procedure, alleging non-compliance with Section 35 of the Act. The High Court held that the provisions of Section 35 were mandatory and their infringement invalidated the sale. The Supreme Court, however, examined whether non-compliance with Section 35 rendered the sale a nullity or merely an irregularity. Issue 2: Whether Non-Compliance with Section 35 of the Act Renders the Sale a Nullity or an Irregularity Section 35 mandates that the proclamation of the intended sale of property in execution of a decree should specify only so much of the property as is saleable at a price sufficient to satisfy the decree. The Supreme Court considered whether the breach of this mandatory provision rendered the sale a nullity. It was noted that the provision is intended for the benefit of the judgment-debtor and not for public interest. The Court referred to various precedents and legal principles, concluding that an act done in breach of a mandatory provision is not necessarily a nullity unless it affects the jurisdiction of the court. The Court observed that the executing court had inherent jurisdiction to sell the property, and the non-compliance with Section 35 was an irregularity, not a nullity. Issue 3: Applicability of Order XXI, Rule 90 of the Code of Civil Procedure to Set Aside the Sale Order XXI, Rule 90 of the Code of Civil Procedure allows a person whose interests are affected by the sale to apply to the court to set aside the sale on the ground of material irregularity or fraud. The Supreme Court held that non-compliance with Section 35 constituted a material irregularity in publishing or conducting the sale. However, the sale could not be set aside unless the applicant sustained substantial injury due to the irregularity. Additionally, the second proviso to Rule 90 precluded setting aside the sale if the judgment-debtor, after receiving notice, did not attend the drawing up of the proclamation or object to the defect at the time. Issue 4: Waiver of Mandatory Statutory Provisions by the Judgment-Debtor The Court examined whether the judgment-debtor could waive the mandatory provisions of Section 35. It was held that the provision was intended for the benefit of the judgment-debtor, and thus, he could waive the right conferred under Section 35. The Court cited precedents indicating that provisions intended for the private benefit of individuals could be waived. The concurrent finding was that no substantial injury was caused to the judgment-debtor due to non-compliance with Section 35. Furthermore, the judgment-debtor either did not file objections or did not attend the drawing up of the proclamation, thus failing to meet the requirements to set aside the sale under Order XXI, Rule 90. Conclusion: The Supreme Court set aside the orders of the High Court and restored the orders of the Additional Subordinate Judge. The appellants were awarded costs throughout from the first respondent. The appeals were allowed.
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