Bhupati Charan Bag v. Manmatha Nath Majumdar — 1970 DIGILAW 112 (CAL)

Judgment 1. THIS appeal is from the order dated 17. 12. 63 passed by Subordinate Judge, 24-Parganas in Title Execution Case No. 34/1960 dismissing the Miscellaneous Case No. 66/1963 arising out of an application filed by the judgment-debtors appellants under section 35 of the Bengal Money Lenders Act 10/1940 (hereafter referred to as the Act. 2. THE facts giving rise to the present appeal are as follows : After the amount was settled at Rs. 19,515/-on compromise on an application u/s. 38 of the Act, a preliminary mortgage decree was passed for Rs. 21,223-72 which was followed by a mortgage final decree. On 2. 3. 62 a sale proclamation was issued in Title Execution Case No. 34/1960 fixing 9. 5. 62 for sale. But before the sale could be held after it was adjourned, the judgment-debtors Bhupati Bag and Madhab Bag filed an application u/s. 47 of the Civil Procedure Code on 28. 5. 62 registered as Misc. Case No. 27/1962 objecting to the valuation of the sale proclamation. By an order dated 7. 9. 63 passed on consent the Court directed issue of a fresh sale proclamation including both the valuations given by the decree-holders as well as the judgment-debtors viz. Rs. 20,000/- and 1 lacs respectively and sale date was fixed on 17. 12. 63 The sale proclamation was served on the 9th of October, 1963, and 10th of October, 1963. In the meantime, the same judgment-debtors filed a petition under section 47 alleging, inter alia, chat the description of the properties were not sufficient. This petition was registered as Misc. Case No. 59/1963 and it was heard and disallowed on the 14th of December, 1963. Then on the 16th of December, the same set of judgment-debtors filed a petition under section 35 of the Bengal Money Lenders Act. The petitioners contended that under section 35 of the Bengal Money Lenders Act 1940 the decree-holders are entitled to put to sale so much of the mortgaged property as is sufficient to liquidate the decretal dues and in the schedule of the application some eight items of property were mentioned which are a portion of the mortgaged property and its value is said to be Rs. 21,500/ -. 21,500/ -. The petitioners contended that the valuation of the property mentioned in the schedule should be determined by the Court and the same should be directed to be advertised for sale and not the entire mortgaged property in terms of Section 35 of the Bengal Money Lenders Act. These facts are not disputed. The learned Trial Court, however, by an order dated 17. 12. 63 dismissed the Misc. Case and rejected the application as not maintainable both on the ground of waiver and also on the ground of constructive resjudicata. Being dissatisfied the petitioners preferred this appeal which is contested on behalf of the decree-holders. At the outset a controversy arose whether the order is appealable or whether the application for revision is necessary. It is now well-settled that an application under section 35 of the Bengal Money Lenders Act relates to the execution of the decree relating to the sale of the property between the decree-holder and the judgment-debtors or their representatives and as such it amounts to an objection under section 47 of the Civil Procedure Code and accordingly it is appealable. If any authority is needed, we may refer to the decision of this Court (1) Gaya Prosad v. Seth Dhanrupwala Bhandari 58 C. W. N. 503 in which it was held that an objection under section 35 of the Bengal Money Lenders Act 1940 involves question relating to the execution of the decree affecting the rights and liabilities of the parties requiring judicial determination of the same under section 47 of the Civil Procedure Code. We, therefore, hold that the appeal is competent and as such reject the application for revision without costs which is unnecessary. This is also implied in the decision entertaining the appeal from an order rejecting the application under section 35 of the Bengal Money Lenders Act in (2) Asaram Thikadar v. Bijoy Singh, 1944 I. L. R. 1 Calcutta 167. 3. MR. Mukti Prosanna Mukherji appearing for the appellants has relied on the decision mentioned above in (2) Asaram Thikadar's case and has contended with emphasis that in view of that decision the direction of section 35 of the Bengal Money Lenders Act cannot be complied with by mere insertion of the two valuations given by the decree-holders and the judgment-debtors respectively. Mukti Prosanna Mukherji appearing for the appellants has relied on the decision mentioned above in (2) Asaram Thikadar's case and has contended with emphasis that in view of that decision the direction of section 35 of the Bengal Money Lenders Act cannot be complied with by mere insertion of the two valuations given by the decree-holders and the judgment-debtors respectively. In carrying out the direction of that section it is incumbent upon the Court not only to specify so much of the property of the judgment-debtors which is considered saleable at a certain price to be sufficient to satisfy the decree, it must also specify the price of the property below which cannot be sold. The Court has got to determine the price of the property which is to be put up for sale on proper evidence and only one valuation should be given in the sale proclamation. On the other hand, Mr. Monomohon Mukherjee, the learned Advocate for the respondents, has contended before us that this claim of the judgment-debtors appellants is barred by waiver. They were duly served with notice of execution under Or. 22 R. 66. On the 2nd March 1962, the sale proclamation was issued fixing 9th May for sale at 12 noon. The application filed by Bejoy Krishna Mondal under Or. 21 R. 58 of the C. P. Code was ultimately dismissed for default on the 12th September. In the meantime, on the 28th of May 1962 the present judgment-debtors appellants filed a petition under sec. 47 alleging Inter alia, that the valuation of the property, given in the sale proclamation was too low. This was registered as Misc. Case No. 27/1962 and it came up for hearing. A fresh sale proclamation was issued on consent with both the valuations fixing 17. 12. 63 for sale at 12 noon. The slate prodamation was served on the 9th of October and 10th of October. In the meantime, these judgment-debtors appellants filed a petition under section 47 alleging, inter alia, that the description of the properties was not sufficient. This was registered as Misc. Case No. 59/1963 and it was heard and disallowed on the 14th of December 1963. Thereafter, on the 16th of December the same set of judgment-debtors filed the present petition under section 35 of the Bengal Money Lenders Act. The decree-holders respondents contend that the right is barred by waiver and resjudicata. This was registered as Misc. Case No. 59/1963 and it was heard and disallowed on the 14th of December 1963. Thereafter, on the 16th of December the same set of judgment-debtors filed the present petition under section 35 of the Bengal Money Lenders Act. The decree-holders respondents contend that the right is barred by waiver and resjudicata. They also relied on three decisions of this Court: (1) Gaya prosad v. Seth Dhanrupwala Bhandari 58 C. W. N. 503, (3) Maniruddin Ahmmed v. Umaprasanna Mukherjee 64 C. W. N. 20 and (4) Dhirendra Nath Gorai v. Sudhir Chandra Ghosh A. I. R. 1964 S. C. 1300. 4. IT cannot be disputed that under section 35 of the Bengal Money Lenders Act it is the duty of the Court to specify only so much of the property of the judgment-debtors as the Court considers to be saleable at a price sufficient to satisfy the decree in the proclamation of the intended sale of the property in execution of a decree passed in respect of a loan and. the property so specified shall not be sold at a price which is less than the price specified in such proclamation. But at the same time it is now the settled law that, whether the direction be deemed as directory or mandatory, the judgment-debtors have the right to waive the benefit intended for them in their private capacity. This has been decided by a long chain of decisions of this Court and it has been approved by the Supreme Court. In the instant case, the appellants appeared at various stages of execution and raised various objections particularly regarding the valuation of the mortgaged properties in the sale proclamation in Misc. Case No. 27/62 filed on the 28th of May 1962, With the consent of both sides, a fresh sale proclamation was issued giving both the valuations of the judgment-debtors as also of the decree-holders. No question was raised about the right claimed by the appellants now under section 35 of the Bengal Money Lenders Act. Thereafter, on the 9th of October 1963, an application was filed under section 47 of the Civil Procedure Code alleging, inter alia, that the description of the property was not sufficient. The said application was also disallowed on the 14th of December, 1963. Thereafter, on the 9th of October 1963, an application was filed under section 47 of the Civil Procedure Code alleging, inter alia, that the description of the property was not sufficient. The said application was also disallowed on the 14th of December, 1963. Thereafter, on the 16th of December just one day before the date fixed for sale the present application was filed under section 35 of the Bengal Money Lenders Act by the same set of judgment-debtors. In the circumstances, there was a waiver of the right and as such the same cannot be re-agitated afterwards. It is true that there could be no waiver against statute, but it has been explained that the waiver can be made by the private party in whose favour the benefit is given by a statute. In the instant case, therefore, the petitioners appellants having waived their right by their conduct and action in relation to the execution petition they are not entitled to raise the same objection in the instant case. We, therefore hold that the rights claimed are now barred by the doctrine of waiver, as found by the learned Judge. Mr. Mukherjee for the appellants contended, however that the cases cited by the learned Advocate for the respondents all relate to cases where the sale had already taken place and as such these cases are not applicable to the facts of the present case which is governed directly by Ashram Thikadar's case cited above where the sale had net taken place. In our view, the contention of Mr. Mukherjee for the appellants is not correct. The main question for decision in series of cases leading up to (4) Dhirendra Gorai's case A. I. R. 1964 S. C. 1300, is not whether the sale had taken place or not but whether the doctrine of waiver is applicable to a statutory provision under section 35 of the Bengal Money Lenders Act and it was held at page 1305 "where the Court acts without inherent jurisdiction, a party affected cannot by waiver confer jurisdiction on it which it has not where such jurisdiction is not wanting, a directory provision can obviously be waived. But a mandatory provision can only be waived if it is not conceived in the public interest but in the interest of party that waives it. But a mandatory provision can only be waived if it is not conceived in the public interest but in the interest of party that waives it. " Applying the test in the present case, the executing Court has inherent jurisdiction to sell the property. We have assumed that section 35 of the Act is a mandatory provision and if so the question is whether the said provision is conceived in the interest of the public or in the Interest of the party affected by the non observance of the provision. Section 35 of the Act is really intended to protect the right of the party. Accordingly, the judgment-debtors could waive their right under section 35 of the Bengal Money Lenders Act and their consent in issuing sale proclamation with both the valuations without referring to section 35 of the Bengal Money Lenders Act amounts to waiver of that right under that section. Secondly, it is clear from the averments of facts that the appellants were aware of the execution case against mortgaged properties. They appeared in the execution case and raised various objections relating to the sale of the mortgaged property both on grounds of valuation and also on the ground of description in connection with Misc. Case No. 27/62 and No. 59/63. In connection with those cases particularly Misc. Case No. 27/62 the appellants could have and should have raised the objection under section 35 of the Bengal Money Lenders Act along with objection as to valuation. The objection under section 35 of the Bengal Money Lenders Act could have been taken and should have been taken when Misc. Case No. 27/63 was filed. But for reasons best known to them, they did not choose to raise the objection in proper time. If so, the principles underlying the doctrine of constructive resjudicata are applicable to the execution case and on this around also the application is barred as resjudicata and no further relief is available to the appellants under section 35 of the Bengal Money Lenders Act. 5. IN the result, the appeal be dismissed with costs to the appearing respondents. Let the records be sent to the Lower Court immediately.