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Issues Involved:
1. Whether a sale held in contravention of Section 99 of the Transfer of Property Act is a nullity or an irregular and voidable sale. 2. Whether the right of redemption of the mortgagor is affected by such a sale. Detailed Analysis: Issue 1: Nature of Sale Held in Contravention of Section 99 of the Transfer of Property Act The primary question addressed is whether a sale conducted in violation of Section 99 of the Transfer of Property Act is a nullity or merely an irregular and voidable sale. The judgment references the Privy Council's decision in Khiarajmal v. Daim, which establishes that such a sale is not a nullity but an irregular and voidable sale. The sale can be avoided before its confirmation by an application under Section 244 of the Code of Civil Procedure, without the need to demonstrate more than the contravention of the Transfer of Property Act. However, after confirmation, the sale can only be avoided if the applicant proves that fraud or other reasons kept them ignorant of the sale proceedings. The judgment further clarifies that Section 99 of the Transfer of Property Act prevents a mortgagee from bringing the mortgaged property to sale in execution of a decree for the satisfaction of any claim, except by instituting a suit under Section 67. The section aims to prevent the mortgagee from executing a money decree against the mortgaged property to deprive the mortgagor of their right of redemption. The judgment explores various judicial opinions on the effect of violating Section 99, noting that there is no uniform stance. Some cases consider such a sale a nullity, while others deem it voidable but not null. The court ultimately aligns with the view that a sale held contrary to Section 99 is voidable and not a nullity, meaning it requires formal annulment to cease being operative. Issue 2: Right of Redemption of the Mortgagor The judgment does not provide a direct answer to the second question regarding whether the right of redemption of the mortgagor is affected by such a sale. The court deems it unnecessary and inadvisable to answer this question in the current proceedings, suggesting that it is more relevant in a suit for redemption rather than in proceedings for the reversal of the sale. Conclusion: The court concludes that a sale held in contravention of Section 99 of the Transfer of Property Act is not a nullity but an irregular and voidable sale. It can be set aside by an application under Section 244 of the Civil Procedure Code before confirmation, or after confirmation if the applicant proves ignorance of the sale due to fraud or other reasons. The right of redemption of the mortgagor is not directly addressed in these proceedings, as it pertains more to a suit for redemption. Order: The case is remanded to the Subordinate Judge for further inquiry into the matters discussed and any other arising issues. The costs will abide by the result, and the hearing fee is fixed at ten gold mohurs.
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