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TMI Blog1964 (3) TMI 87X X X X Extracts X X X X X X X X Extracts X X X X ..... n the 7th Additional Court of the Subordinate Judge at Alipore, for enforcing the first mortgage. To that suit the puisne mortgagees were also made parties. On May 24, 1948, a preliminary decree by consent was made in the suit whereunder the judgment- debtor was directed to pay a sum of ₹ 15,473-7-9 to the appellant in 7 equal annual instalments. As the judgment- debtor failed to pay the said amount, in due course a final decree was passed in the mortgage suit on or about February 2, 1949. Thereafter, the decree was put in execution on January 31, 1950, and in the said execution application a schedule of properties sought to be sold for the satisfaction of the said claim was annexed. The schedule comprised 11 properties and the appellant gave valuation of the said properties. Though the 1st respondent received a notice under O. XXI, r. 66 of the Code of Civil Procedure, he did not file any objection to the valuation. Though the first respondent got the sale adjourned a number of times promising to pay the decretal amount, he failed to do so. Finally two of the said properties were put up for sale on June 23, 1951, and one of the said properties was purchased by the 12th re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed an application before the learned Subordinate Judge for setting aside the sale under O. XXI, r. 90 of the Code of Civil Procedure, on grounds similar to those raised in the other application, the subject-matter of Civil Appeal No. 85 of 1961. The said application was heard by the learned Subordinate Judge along with the said other application. For the same reasons, he dismissed the application. On appeal, the Division Bench of the High Court heard the appeal along with the connected appeal and set aside the sale. The present appeals are filed by certificate against the common judgment of the High Court in both the matters. Mr. Sen, learned counsel for the appellants in both the appeals, contends that whether s. 35 of the Act is mandatory or directory the sale held in violation of the said provision is only illegal but not a nullity and, therefore, it can be set aside only in the manner and for the reasons prescribed in O. XXI, r. 90 of the Code of Civil Procedure, and further that, as the respondents did not attend at the drawing up of the proclamation of sale, the sale cannot be set aside at their instance. To appreciate the argument it is necessary and convenient to read at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure. (ii) that no sale shall be set aside on the ground of any defect in the proclamation of sale at the instance of any person who after notice did not attend at the drawing up of the proclamation or of any person in whose presence the proclamation was drawn up, unless objection was made by him at the time in respect of the defect relied upon. Under O. XXI. r. 64 of the Code of Civil Procedure, the executing court may order that any property attached by it and liable to sale or such portion thereof as may seem necessary to satisfy the decree shall be sold. Under r. 66 of the said Order of the Code when a property is ordered to be sold in public auction in execution of a decree the court shall cause a proclamation of the intended sale to be made and such proclamation shall specify as fairly and accurately as possible, among others, the property to be sold and such proclamation shall be drawn up after notice to the decree-holder and the judgment-debtor: under sub-r. (4) thereof, the court may summon and examine any person or require him to produce any document in his possession or power relating thereto. Under the said provisions the court has power to direct the sale of the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hing or conducting the sale. A party who received the notice of the proclamation but did not attend at the drawing up of the proclamation or did not object to the said defect cannot maintain an application under O. XXI, r. 90 of the Code of Civil Procedure. Even if he could, the sale cannot be set aside unless by reason of the said defect or irregularity he had sustained substantial injury. On this question a divergence of views is reflected in the decisions cited at the Bar. Mukherjea and Pal, JJ., in Asharam Thikadar v. Bijay Singh Chopra(I.I..R. [1944] 1 Cal. 166. 134-159 S.C.-64) set aside the order of the executing court and sent the case back to that court, as the said court inserted in the proclamation the valuation of the property given by the judgment-debtor as well as that given by the decree-holder and did not, as it should do under s. 3 5 of the Act, determine the price of the property which was to be put up for sale on proper evidence. This decision has no relevance to the question raised before us, as the appeal before the High Court was against the order made by the executing court dismissing the application filed by the judgment-debtor requesting the court to dem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... meaning of O. XXI, r. 90 of the Code of Civil Procedure would arise. This raises the question whether such a sale is a nullity. If a provision of a statute is only directory, an act done in contravention of the provision is manifestly not a nullity. Section 35 of the Act is couched in a mandatory form and it casts in terms a duty on the court to comply with its provisions before a sale is held. Prima facie the provision is mandatory; at any rate, we shall assume it to be so for the purpose of these appeals. Even then, the question arises whether an act done in breach of the mandatory provision is per force a nullity. In Ashutosh Sikdar v. Behari Lal Kirtania((1908) I.L.R. 35 Cal. 61, 72), Mookerjee, J., after referring to Macnamara on Nullity and Irregulari- ties , observed : no hard and fast line can be drawn between a nullity and an irregularity; but this much is clear, that an irregularity is a deviation from a rule of law which does not take away the foundation or authority for the proceeding, or apply to its whole operation, whereas a nullity is a proceeding that is taken without any foundation for it, or is so essentially defective as to be of no avail or effect whatev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tee held that s. 80 of the Code of Civil Procedure was explicit and mandatory; but still it held that it could be waived by the authority for whose benefit that was provided. This aspect of the law in the context of s. 35 of the Act was considered by a Division Bench of the Calcutta High Court in Gaya Prosad v. Seth ((1953) 58 C.W.N. 503. 508.) Dhanrupwal Bhandari(1). Dealing with this argument, P. N. Mookerjee, J., speaking for the court, observed : It is true that section 35 of the Bengal MoneyLenders Act casts a duty upon the court but such duty is solely for the benefit-the private benefit-of the judgment-debtor. It is, therefore, open to him to waive this benefit, or, in other words, to waive his objection of nonobservance of that statutory provision by the court. . . . . . Guha and Banerjee, JJ., expressed much to the same effect in Maniruddin Ahmed v. Umaprasanna(64 C.W.N. 20.) thus, at p. 30: The Bengal Money-Lenders Act, 1940 enacted for the purpose of making better provision for the control of money-lenders and for the regulation and control of money-lending, has certainly a public policy behind it. But some of its provisions, and section 35 one of them, are in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ire property sold so that he may realize the real value of the property and pay part of the sale price towards the decretal amount. He cannot obviously be compelled to submit to the sale of a part of the property to his disadvantage. A provision intended for his benefit cannot be construed in such a way as to work to his detriment. But it is said that the proviso to s. 35 of the Act indicates a contrary intention. Under that proviso, if the highest amount bid for the pro- perty so specified is less than the price so specified, the Court may sell such property for such amount, if the decree- holder consents in writing to forego so much of the amount decreed as is equal to the difference between the highest bid and the price so specified . This is only an option given to the decree-holder : he may exercise this option, if he does not like to go through the entire sale proceedings overagain. In one contingency this proviso also Works for the benefit of the judgment-debtor, for he will be relieved of part of his indebtedness. But anyhow this does not show that the main provision is not intended for the benefit of the judgment-debtor. We are, therefore, satisfied, on a true constructio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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