Jamini Mohan Banerji v. Ram Kissen Das Bagree — 1949 DIGILAW 485 (CAL)

JUDGMENT Das, J. - This appeal is directed against an order dated June 23, 1948, passed by Mr. G.S. Chatterji, learned Subordinate Judge, Fifth Court, Alipore, dismissing an application filed by Jamini Mohan Banerji under Order XXI, Rule 90, Code of Civil Procedure, for setting aside an execution sale. 2. The facts are as follows: Parindra Krishna Deb and Pranayendra Krishna Deb borrowed money on a mortgage from Earn Kissen Das Bagri and Shew Chand Bagri. The latter instituted a suit to enforce the mortgage and obtained a preliminary decree for sale on June 7, 1941. On November 27, 1943, Parindra sold his interest to Jamini Mohan Banerji (the Appellant) for a sum of Rs. 2,000. The deed of sale is Ex. 1. On August 27, 1945, a final decree for sale was passed. The decree was put into execution on September 23, 1945, for a sum of Rs. 20,834 as. 6 pies 3 only. 3. Neither in the mortgage suit nor in the execution proceedings, was the Appellant made a party. Pranayendra and Parindra were made the sole judgment-debtors. Notices under Order XXI, Rule 66, of the Code were served on them. On April 4, 1946, only Pranayendra filed an application to the effect that the sale-proclamation should be drawn up in accordance with Section 35 of the Bengal Money-lenders Act. On June 29, 1946, the decree-holder and the judgment-debtor Pranayendra filed a joint petition and agreed that in the sale-proclamation both the values put by the decree-holder and the judgment-debtor Pranayendra should be mentioned; that lot No. 1 (16 as of khatiyan No. 189) will be sold first and if the entire dues of the decree-holder are not satisfied thereby, lot No. 2 (2/3 rd share of khatiyan No. 313) will be sold next and if the dues of the decree-holder are still unsatisfied, the remaining property of lot No. 3 (2/3rd share) will be sold. 4. In the sale-proclamation, the respective values given by the decree-holder and the judgment-debtor Pranayendra were stated. The properties were put up to sale on September 13, 1940 and the highest bid was Rs. 10,000 in respect of all the lots. The court was of opinion that the bid was insufficient and the lots were directed to be put up for sale again on the following date. On that date (September 14, 1946) the highest bid of the decree-holder, viz., Rs. 10,000 in respect of all the lots. The court was of opinion that the bid was insufficient and the lots were directed to be put up for sale again on the following date. On that date (September 14, 1946) the highest bid of the decree-holder, viz., Rs. 7,400 for lot 1, Rs. 4,000 for lot 2 (2/3rd), Rs. 9,863-4-9p for lot 3 (2/3rd) was accepted. 5. On May 27, 1947, the Appellant filed an application under Order XXI, Rule 90 of the Code, dating his knowledge on May 24, 1947, from Gouri Shankar Banerji. 6. The application was dismissed by the learned Subordinate Judge on contest on the finding that the notice under Order XXI, Rule 66 of the Code and the sale proclamation were duly served, that there was no inadequacy of price, that the non-compliance with Section 35 of the Bengal Money-lenders Act was a material irregularity, hut this was not sufficient to set aside the sale, as there was no substantial injury and that the application was barred by limitation, as there was no fraud to keep the Petitioner out of the knowledge of the sale. 7. Mr. Apurbadhan Mukherji appearing for the Appellant (Applicant) has pressed the following points: (i) There was an irregularity in stating both the values as given by the decree-holder and the judgment-debtor in the sale proclamation. (ii) The sale-proclamation was not served, but was suppressed. (iii) The value, as given in the sale-proclamation, was shockingly low. (iv) The application under Order XXI, Rule 90 of the Code was not barred by limitation. (v) Non-compliance with Section 35 of the Bengal Money-lenders Act made the sale a nullity. The first contention is not of any substance. 8. Notification No. 8575G, dated July 26, 1938, states that it is not necessary for the court itself to give its own estimate of the value of the property, but the proclamation shall include the estimate, if any, given by either or both the parties. 9. The second contention relates to the service of the sale-proclamation. 10. After discussing the evidence on the point, it was held: The above evidence is hardly sufficient to prove non-service, much less suppression of sale-proclamation. This contention also fails. 11. The third contention relates to the valuation of the property sold. 12. 9. The second contention relates to the service of the sale-proclamation. 10. After discussing the evidence on the point, it was held: The above evidence is hardly sufficient to prove non-service, much less suppression of sale-proclamation. This contention also fails. 11. The third contention relates to the valuation of the property sold. 12. Both the valuations as suggested by the judgment-debtor No. 1 and by the decree-holder were stated in the sale-proclamation, as provided for by the rules framed by this Court, as already mentioned. The principle underlying the case of Saadatmand Khan v. Phul Kuar (1898) ILR 20 All. 412 : L.R. 25 IndAp 146 has no application. As regards the value fetched at the sale, the Appellant has failed to prove that the same was low. 13. After discussing the evidence on the point, it was held: The evidence led by the Appellant does not show that the property was sold at an undervalue. The third contention also fails. 14. The fourth contention is not supported by any reliable evidence. 15. There is no evidence worth the name about fraud of the decree-holders auction-purchasers. The fourth contention also fails. 16. The fifth and last contention has now to be considered. This relates to the effect of non-compliance with Section 35 of the Bengal Money-lenders Act. 17. The first part of the section imposes a duty upon the court, in case of execution of a decree in respect of a loan as defined in Section 2(12) of the Act, to specify in the sale-proclamation only so much of the property of the judgment-debtor as is sufficient to (satisfy the decree and forbids a sale of the property so specified at less than that price. 18. The proviso contains an exception to the first part and enables the court to sell the property at a lower price, only if the decree-holder consents to write off the balance of his decretal dues. 19. The question is what is the effect of non-compliance with this provision. 20. It is not disputed that the decree in the present case was in respect of a loan. 21. The provision is, no doubt, couched in imperative language. 19. The question is what is the effect of non-compliance with this provision. 20. It is not disputed that the decree in the present case was in respect of a loan. 21. The provision is, no doubt, couched in imperative language. But a breach of imperative provisions does not necessarily render the transaction a nullity--whether the provision is mandatory or directory depends on the nature, effect and object of the particular provision violated: Ashutosh Sikdar v. Behari Lal Kirtania (1907) ILR 35 Cal. 61. The safest rule to determine if the provision is directory or mandatory is to see if the benefit of the provision can be waived. The question of waiver depends on the further test, viz., whether the particular provision or statute is based on grounds of public policy or intended only for the benefit of a particular class of persons. In the former case, it is obligatory and the contravention must be a nullity, in the latter case it is only directory and a contravention amounts to an irregularity (ibid). As Lord Campbell L.C. observed in Liverpool Borough Bank v. Turner (1860) 2 De G.F. and J. 502 (508) : 45 E.R. 715 (718): It is the duty of Courts of Justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed. 22. Section 35 merely limits the extent of the property to be sold and is a qualification on Order XXI, Rule 66(1)(a), which requires the proclamation of sale to specify the property to be sold. 23. If the court complies with the first part of Section 35, but the highest bid falls below the decretal dues and the decree-holder does not consent to forego the balance, the sale does not materialise and a fresh sale has to be ordered. The execution sale is staved off for the time-being and the judgment-debtor gets a respite and a further chance of a resale of his property. 24. If the court does not comply with the first part, the proceedings go on and the sale takes place. Can it be said that the execution court, which had an initial jurisdiction to hold the sale, loses it by reason of non-compliance with a provision which may affect the extent of the property to be sold? 25. 24. If the court does not comply with the first part, the proceedings go on and the sale takes place. Can it be said that the execution court, which had an initial jurisdiction to hold the sale, loses it by reason of non-compliance with a provision which may affect the extent of the property to be sold? 25. The Bengal Money-lenders Act gives protection and relief to borrowers and aims at control of money-lender and money-lending. Some of its provisions are no doubt based on public policy, but other provisions are solely intended for the benefit of debtors. Section 35 of the Act is intended for the benefit of the debtor and is merely directory and can be waived. 26. Judged by the above principles, in my opinion, a breach of the first part of Section 35 does not render the sale a nullity, but makes it voidable and requires the sale to be set aside by appropriate proceedings within the time allowed by law. 27. In Manindra Chandra Roy Chaudhury v. Jagadish Chandra Majumder (1945) 50 C.W.N. 266, Chakravarti J. was of the opinion that an objection regarding non-compliance with Section 35 was a defect in the sale-proclamation as regards specifying the property to be sold. The view taken by me is also supported by the decision in Sheo Dayal Narain v. Moti Kuer (1941) ILR 21 Pat. 281, where, under the analogous provisions (Section 13) of the Bihar Money-lenders Act, it was held that failure to value the property sold does not go to the root of the court's jurisdiction to hold the sale, so as to make it a complete nullity, but makes the sale voidable. 28. Mr. Apurbadhan Mukherji relied on the case of Raghunath Das v. Sundar Das Kheteri I.L.R.(1914) Cal. 72 : L.R. 41 IndAp 251 which held that non-compliance with Order XXI, Rule 22 of the CPC rendered the sale a nullity. But, in that case, service of notice under the rule was necessary to vest the court with jurisdiction to sell the property of the judgment-debtor by giving time of the intended execution. 29. Reliance was also placed on the decision in Shyamakant Lal v. Rambhajan Singh (1939) F.C.R. 193. In that case, the present question did not arise, the question concerned the retrospective operation of the Bihar Money-lenders Act. 29. Reliance was also placed on the decision in Shyamakant Lal v. Rambhajan Singh (1939) F.C.R. 193. In that case, the present question did not arise, the question concerned the retrospective operation of the Bihar Money-lenders Act. Reliance is placed on the following observations at p. 200: The sections confer on the judgment-debtor a valuable substantive right, viz., the right to insist not only that so much alone of the attached or mortgaged property as the court considers sufficient to satisfy the decree should be brought to sale but also that the property should not be allowed to be sold for less than the price fixed by the court. 30. Their Lordships go on to state that this is different from fixing the upset price and from what is available to a debtor under Order XXI, Rule 90 of the Code of Civil Procedure. 31. The observations do not mean that the sale held in contravention of those sections is void, they are consistent with the view that such a sale is voidable. In Jatindra Mohan Sarkar v. Mahipal Nayak ILR (1948) 2 Cal. 278, it was observed that Sections 16, 17 of the Bihar Money-lenders Act are in pari materia with Section 35 of the Bengal Money-lenders Act. After referring to Shyamakanta's case already referred to, their Lordships observed that a sale held without compliance with Section 35 brings the case within Section 47 of the Code of Civil Procedure. 32. Their Lordships do not say that the sale is a nullity, as the learned advocate for the Appellant suggested. It may be pointed out that, where the sale is brought about by fraud, other than fraud in publishing or conducting the sale, or is held without compliance with Order XXI, r. 72 of the CPC or Section 173 of the Bengal Tenancy Act, the case comes within Section 47 of the Code of Civil Procedure, but such sales are voidable and have to be set aside within the period of limitation. As already stated, in my opinion, the sale held without compliance with Section 35 of the Bengal Money-lenders Act renders the sale voidable. The period of limitation for setting aside such a sale is prescribed by Article 166 of the Indian Limitation Act. 33. The observations to the contrary in Jatindra Mohan's case (supra) are obiter. As already stated, in my opinion, the sale held without compliance with Section 35 of the Bengal Money-lenders Act renders the sale voidable. The period of limitation for setting aside such a sale is prescribed by Article 166 of the Indian Limitation Act. 33. The observations to the contrary in Jatindra Mohan's case (supra) are obiter. The view taken by me is supported by the plain words of the Article and by the decisions in Sheo Dayal Narain v. Moti Kuer (supra) and Haripado Haldar v. Baradaprasad Roy Chowdhury (1924) ILR 51 Cal. 1014. 34. This contention also fails. 35. The result, therefore, is that this appeal fails and must be dismissed with costs-hearing-fee 5 gold mohars. Guha J. 36. I agree.