# Dhirendranath Gorai v. 5udhir Chand1a Ghos/1

- **Citation:** [1964] 6 S.C.R. 1001
- **Court:** Supreme Court of India
- **Decided:** 1964-03-04
- **Case number:** C.A .. Nos. 85 and • 8':> of 1961
- **Bench:** K. SUBBA RAo, K. C. Das Gupta, Raghubar Dayal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dhirendranath-gorai-v-5udhir-chand1a-ghos-1-3059
- **Pages:** 15

## Headnote

1964
March 4.
~
Execution-Court salt of property in execution of a decree in respect o/
a loan-Judgment-debtor not objecting to valuation even after 1ervict
of notice-Application for selling asidt tht 1al• on tht vourul of
1964
Dhirendranath
Gorai
v.
5udhir Chand1a
Ghos/1
1002
SUPREME CO!JRT REPORTS
no11-cu1npliance of the provisions of s. 35 · vf the
Bengal
Jo,,Jvney
Lenders Act-Maintainability-Sale if, valid-Bengal AJoney
Lena·er~' Act, 1940 ( 10 of 1940), s: 35-Code of Civil Procedure, 1908
( V of 1908), U.XXI, rr. 64, 66 and 90.
ln execution of a decree passed in a mortgage suit, the appellant
11.n11exed in the execution application a Schedule comprising of J 1 provertlC1' sought to be sold for the satisfaction of the claim. The appellant
gave valuation of the said properties.
Though the
1st
responUent
received a notice under 0.XXl, r. 66 of the Code· of Civil Procedure,
be did not file any objection to the valuation. Though he got the sal.!
adjourned a number of times promising to pay the decretal amount, be·
failed to do so. Finally, two of the said properties
were :sold.
The
l.!:il respondent then filed an application in the executing court for setting
a~i<le, the saiO. sale unde:- O.XXI, r. 90 of the Code of Civil Procedure.
inter aiia, on the ground that s. 35 of the Bengal Nloney·Lender's Act
was not complied with. The learned subordinate Judge held that there
was no fraua in publishing and conducting the ~ale, that the price of
the lots sold was fair and that lhe s;.li~ was not vitiated by reason of
1nfringen1cnt of s. 35 of the A!.:t.
On appeal, the High Court held that
though there bad not been any substantial injury to the 1st respondent,
the provisions of s. 35 of the Act were 111andatory and. therefore, the
infringen1eut of the said provisions would invalidate the sale. In this
Court it was contended on behalf of the appellants that whether s. 35
of the Act was mandatory or directory, the sale held in violation of the
saiJ provision \Vas only illegal but not a nullity and, therefore, it could
be set aside only in the manner and for the reasons prescribed in Q.XX:l,
r. ~O 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
!).de could not be set aside at their instance.
Held; The non-compliance with the provisions of s. 35 of the Acl
J~ a defect or
<.1 irregularity in
publi~hing or conducting the sale.
A
pany 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 coul'd, the sale cannot be
set aside
unless by reason of the said defect or irregularity he
bad sustained
substantial injury.
Ashrun1 Thikadar v. Vijay Singh Chopra, LL.R. (1944) l Cal.
166,
distinguished.
Alanindra Cha11dra v. Jogdish Chandra, ( 1945) 50 C. W.N. 266 and
Maniruddin Ahmed v. Umanprasamma, (1959) 64 C.W.N. 20, approved.
On a true construction of s. 35 of the Act, it must be hefd that it
was intended only for the benefit of the judgment-debtor and, therefore,
be could waive the right conferred on him under s. 35 of the Act.
'
Case law reviewed.
'
,.
6 S.C.R.
SUPREME COURT REPORTS
1003
1964
If that be the legal position, Q.XXI, r. 90 of the Code of Civil Procedure is immediately attracted. The concurrent finding of the courts
is that by reason of the non-observance of the provisions of s.
3S
of
the Act no substantial injury was caused to the judgment-debtor. Further, though notice was given to the judgment debtor, in one case he did
D\lt file objection at all and in the other case, though the judgment-debtor
filed objections, he did not atlend at the drawing up of the proclamation.
The sales are. therefore, not liable to be set aside under the terms of the
said provision.
Dhirendronath
Gorai
v.
Sudhir Chandra
G'ho.rh

## Text

"
6 S.C;R.
SUPREME COURT REPORTS
1001
Nothing has been placed before us to establish that the
1961
Superintending Engineer was legally authorized to enter into Karamshi l•thasuch a contract on behalf of the Government; nor do the
bhai
d
~
ocuments ex facie show that the agreement was expressed Stat< of Bombay
to be made in the name of the Provincial Government. The
Subba Rao J.
letters mentioned the name of the Minister of the Public
Works Department and also the Government, in the context
of the rates that might be fixed thereafter, but the said
documents did not purport to emanate from the Governor.
At best they were issued under the directions of the
Ministe_r.
We find it difficult to stretch the point further,
as such a construction will make the provisions of s. 175(3)
of the Government of India Act, 1935, nugatory. We
cannot, therefore, hold that either the contract was entered
into by the person legally authorized by the Government
to do so or expressed to be made in the name of the
Governor. The agreement is void, as it has not complied
with the provisions of s. 175(3) of the Government of India
Act, 1935.
In this view, it is not necessary to express our opinion
'111 other interesting questions raised in this case.
In the result, the appeal fails and is dismissed, but in
the circumstances, without costs.
Appeal dismissed.
I>HIRENDRA NA TH GORAi AND SUBAL CHANDRA
SHAW AND OTHERS
v.
SUDHIR CHANDRA GHOSH AND OTHERS
(K. SUBBA RAo, K. C. DAS GUPTA AND
RAGHUBAR DAYAL, JJ.)
1964
March 4.
~
Execution-Court salt of property in execution of a decree in respect o/
a loan-Judgment-debtor not objecting to valuation even after 1ervict
of notice-Application for selling asidt tht 1al• on tht vourul of
1964
Dhirendranath
Gorai
v.
5udhir Chand1a
Ghos/1
1002
SUPREME CO!JRT REPORTS
no11-cu1npliance of the provisions of s. 35 · vf the
Bengal
Jo,,Jvney
Lenders Act-Maintainability-Sale if, valid-Bengal AJoney
Lena·er~' Act, 1940 ( 10 of 1940), s: 35-Code of Civil Procedure, 1908
( V of 1908), U.XXI, rr. 64, 66 and 90.
ln execution of a decree passed in a mortgage suit, the appellant
11.n11exed in the execution application a Schedule comprising of J 1 provertlC1' sought to be sold for the satisfaction of the claim. The appellant
gave valuation of the said properties.
Though the
1st
responUent
received a notice under 0.XXl, r. 66 of the Code· of Civil Procedure,
be did not file any objection to the valuation. Though he got the sal.!
adjourned a number of times promising to pay the decretal amount, be·
failed to do so. Finally, two of the said properties
were :sold.
The
l.!:il respondent then filed an application in the executing court for setting
a~i<le, the saiO. sale unde:- O.XXI, r. 90 of the Code of Civil Procedure.
inter aiia, on the ground that s. 35 of the Bengal Nloney·Lender's Act
was not complied with. The learned subordinate Judge held that there
was no fraua in publishing and conducting the ~ale, that the price of
the lots sold was fair and that lhe s;.li~ was not vitiated by reason of
1nfringen1cnt of s. 35 of the A!.:t.
On appeal, the High Court held that
though there bad not been any substantial injury to the 1st respondent,
the provisions of s. 35 of the Act were 111andatory and. therefore, the
infringen1eut of the said provisions would invalidate the sale. In this
Court it was contended on behalf of the appellants that whether s. 35
of the Act was mandatory or directory, the sale held in violation of the
saiJ provision \Vas only illegal but not a nullity and, therefore, it could
be set aside only in the manner and for the reasons prescribed in Q.XX:l,
r. ~O 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
!).de could not be set aside at their instance.
Held; The non-compliance with the provisions of s. 35 of the Acl
J~ a defect or
<.1 irregularity in
publi~hing or conducting the sale.
A
pany 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 coul'd, the sale cannot be
set aside
unless by reason of the said defect or irregularity he
bad sustained
substantial injury.
Ashrun1 Thikadar v. Vijay Singh Chopra, LL.R. (1944) l Cal.
166,
distinguished.
Alanindra Cha11dra v. Jogdish Chandra, ( 1945) 50 C. W.N. 266 and
Maniruddin Ahmed v. Umanprasamma, (1959) 64 C.W.N. 20, approved.
On a true construction of s. 35 of the Act, it must be hefd that it
was intended only for the benefit of the judgment-debtor and, therefore,
be could waive the right conferred on him under s. 35 of the Act.
'
Case law reviewed.
'
,.
6 S.C.R.
SUPREME COURT REPORTS
1003
1964
If that be the legal position, Q.XXI, r. 90 of the Code of Civil Procedure is immediately attracted. The concurrent finding of the courts
is that by reason of the non-observance of the provisions of s.
3S
of
the Act no substantial injury was caused to the judgment-debtor. Further, though notice was given to the judgment debtor, in one case he did
D\lt file objection at all and in the other case, though the judgment-debtor
filed objections, he did not atlend at the drawing up of the proclamation.
The sales are. therefore, not liable to be set aside under the terms of the
said provision.
Dhirendronath
Gorai
v.
Sudhir Chandra
G'ho.rh
CIVIL APPELLATE JURISDICTION: C.A .. Nos. 85 and
•
8':> of 1961.
Appeals from the judgment and decree dated November
23, ! 954 of the Calcutta High Court in Appeals from
Original Orders Nos. 84 and 83 of 1953.
B. Sen and P. K. Ghosh, for the appellants (in both
•
the appeals).
Suk111nar Ghosh, for the respondents Nos. 12 and 13
(in C.A. No. 85 of 1961).
March 4, 1964. The Judgment of the Court was
delivered by
SunnA RAO J .-These two appeals raise the question of
Subba Rao J.
the validity of the court sale held in contravention of s. 35
of the Bengal Money-Lenders Act, 1940 (Bengal Act X of
1940), hereinafter called the Act.
The facts in both the appeals may be briefly stated. In
Civil Appeal No. 85 of 1961, Sudhir Chandra Ghosh,
respondent No. l, executed a first mortgage in favour of
one
Provash
Chandra
Mukherjee,
since
deceased,
for a sum of Rs. 12,000 /-. Respondent No. I executed a
second, third and fourth mortgages in favour of the appellant
for a total sum of Rs. 7,700/-. He also executed another,
mortgage in favour of the 9th respondent. In the year 1948
respondents 2 and 3, representing the first mortgagee's
estate, filed Title Suit No. 8 of 1948 in 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-
1964
:Jhirendranath
Gorai
v.
Sudhir Chandra
Ghosh
Subba Rao J.
SUPREME COURT REPORTS
.
debtor was directed to pay a sum of Rs. 15,473-7-9 to the
appellant in 7 equal annual instalments. As the judgmentdebtor 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 I st respondent received a notice
under 0. 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 propertie• was purchased
by the 12th respondent for a sum of Rs. 11,800/- and the
other, by the 13th respondent for a sum of Rs. 10,100/-.
On July 21, 1951, the 1st respondent filed an application
in the executing court for setting aside the said sale under
0. XXI, r. 90 of the Code of Civil Procedure, inter alia,
on the ground that s. 35 of the Act was not complied with.
The learned Subordinate Judge held that there was no fraud
in publishing and conducting the sale, that the price of the
lots sold was fair and that the- sale was not vitiated by
reason of infringement of s. 35 of the Act. On appeal a
Division Bench of the High Court held that though there
had not been any substantial injury to the !st respondent,
the rprovisions of s. 35 of the Act were mandatory and,
therefore, the infringement of the said provisions would
invalidate the sale.
In that view, it set aside the sale and
directed the appellant to refund the money with interest.
Civil Appeal No. 86 of 1961 also arises out of the same
execution proceedings.
Under the said compromise preliminary decree the judgment-debtor agreed to pay the
decretal amount of Rs. 25,687 /- to the executors of the
estate of the first mortgagee, respondents 2 and 3. As the
amount was not paid, the said respondents filed an arpplica-
,
tion in the 7th Court of the Additional Subordinate Judge,
Alipore, for the execution of the said decree. In the
A
6 S.C.R.
SUPREME COURT REPORTS
1005
execution petition 8 properties were described and their valuations were _given. The judgment-debtor filed objections to
the valuations given by the decree-holders, but on the date
fixed for settling the valuations of the said properties neither
the judgment-debtor nor his advocate appeared in court.
The learned Subordinate Judge, by his order dated February
11, 1950, directed that both the valuations of the decreeholders and the judgment-debtor be noted in the sale proclamation. Thereafter the sale proclamation was duly issued
and the date of the sale was fixed for May 11, 1950. The
judgment-debtor took as many as 15 adjournments of the
sale promising to pay the decretal amount, but did not do
so. Finally the sale of the properties was fixed for June 23,
1951 and on that date two lots of the property were sold in
execution and the appellants purchased lot No. 1 at a price
0f Rs. 14,000/- and respondent No. 9 purchased Lot No. 2
at a price of Rs. 19,60b/-.
On July 21, 1951, the 1st respondent filed an application' before the learned , Subordinate
Judge for setting aside the sale under 0. 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 appea\, the Division Bench of the High Court heard the
appeal along with the connected appeal and set aside the
sale. The present appeals me fikd 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
0. XXT. 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 lheir
instance.
To appreciate the argument it is necessarv and con-
\'enient to read at the outset the relevant provisions of the
Act and the Code of Civil Procedure.
1964
Dliirendranath
Gorai
v.
Sudhir Chandra
Ghosh
Subba Rao /.
1964
Dhirt':1d1anath
Gorai
v.
Sudhir Cha1u/ra
Ghosh
Subba Rao J.
1006
SUPREME COURT REPORTS
Section 35 of the Act.
"Notwithstanding anything contained in any other
law for the time being in force, the proclamation of the intended sale of property in execution of a decree passed in respect of a loan
shall specify only so much of the property of
the judgment-debtor as the Court considers to
be saleable at a price sufficient to satisfy the
decree, and the property so specified shall not
be sold at a price which is less than the price
specified in such proclamation :
Provided that, if the highest amount bid for the
property 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
amount bid and the price so specified."
CODE OF CIVIL PROCEDURE
Order XX/, r. 64
Any Court executing a decree 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, and that the
proceeds of such sale, or a sufficient portion
thereof, shall be paid to the party entitled under
the decree to receive tbe same.
Order XX!, r. 66.
( I ) Where any property is ordered to be sold by
public auction in execution of a decree, the
Court shall cause a proclamation of the intended snle to be made in the language of such
Court.
(2) Such proclamation shall be drawn up after
notice to the decree-holder and the judgment-
6 S.C.R.
•
SUPREME COURT REPORTS
1007
debtor and shall state the time and place of sale,
and specify as fairly and accurately as possible- -
la) the property to be sold;
•
•
•
•
Order XX/, r. 90.
(I) Where any immovable property has been sold
in execution of a decree. the decree-holder, or
any person entitled to share in a rateable
distribution of assets. or whose interests are
affected by the sale, may apply to the Court to
set nside the sate on the ground of a material
irregularity or fraud in publishing or conducting it or on the ground of failure to issue notice
to him a; required by rule 22 of this Order :
Provided ( i) that no sale shalt be set aside on the
ground of such irregularity. fraud or failure
unless. upon the facts proved. the Court is
satisfied that the applicant has sustained substantial injury by reason of such irregularity.
fraud or failure.
(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 ob,iection was made
by him at the time in respect of the defect relied
upon.
Under 0. XXT. 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
shalt cause a proclamation of the intended sale to be
made and such proclamation shalt specify as fairly and
accurate! y as possible. among others, the property to
1964
Dhirendranath
Gorai
v.
Sudhir Chandra
Ghosh
Subba Rao J,
•
..
1961
Dhirendranath
Gorai
v.
Sudhir Chandra
Ghosh
Subba Rao J.
1008
SUPREME COURT REPORTS
be sold and such proclamation shall be drawn up after
notice to tli'e 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 entire
property attached or a part thereof sufficient to satisfy the
decree and it shall also specify the said property directed to
be sold in the proclamation fixed after giving notice to both
the decree-holder and the judgment-debtor. Under s. 35 of
the Act a duty is cast upon the court in settling the proclamation of the intended sale of property in execution of
a decree passed in respect of a loan to which the Act applies
to specify only so much of the property of the judgmentdebtor as the court considers to be saleal>le at a price
sufficient to satisfy the decree and· not to sell the property
so specified at a price which is less than the price so specified
in such proclamation. This provision is ,in effect a statutory
addition to 0. XXI, .r. 66 of the Code of Civil Procedure.
Indeed, this provision could have been added as another
clause to the said rule. This statutory provision pertains to
the field of proclamation. The rule says so in terms. The
said two conditions are also steps to be taken by the court
in the matter of publishing or conducting the sale.
If a
sale is held without complying with the said conditions,
what is the remedy open to a party affected thereby to get
the sale set aside? Order XXI, r. 90 of the Code in terms
provides for the remedy. It says that a person whose
interests are affected by the sale may apply to the court to
set aside the sale on the groun4 of a material irregularity
or fraud in publishing or conducting it or on the ground
of failure to issue notice to him as required by r. 22 of the
Order.
As the non-compliance with the said conditions is
a material irregulari.ty in publishing or conducting the sale
the court under the first proviso to 0. XXI, r. 90 of the
Code cannot set aside the sale unless it is satisfied that the
applicant had sustained substantial injury by reason of such
irregularity.
That apart, under the second proviso to the
said rule, 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
•
6 S.C.R.
SUPREME COURT REPORTS . 1009
of the proclamation or of any person in whose presence the
proclamation was drawn up unless objection was made by
him at the time of drawing up of the proclamation in
respect of the defect relied upon.
Shortly stated, the noncompliance with the provisions of s. 35 of the Act is a
defect or a irregularity in publishing 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 0. XXT. 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. Bi jay Singh Chopra(') 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. 35 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 fi'ed by the judgment-debtor requesting the
court to demarcate the property to be sold pursuant to the
provisions of s. 35 of the Act.
The question whether a
sale held in non-compliance with the said provisions could
be set aside de hors the provisions of 0. XXI, r. 90 of
the Code of Civil Procedure did not arise for consideration
therein.
The question now posed before us directly arose
for decision before a Division Bench of the Calcutta High
Court, consisting of Akram and Chakravartti. JI., in
Mani~dra Chandra v. Jagadish Chandra( 2 ). Chakaravartti,
J., met the objection raised by the judgment-debtor who
sought to set aside the sale on the ground of non-compliance
with the provisions of s. 35 of the ·Act, thus :
(I) I.I..R. [I944] I Clll. 166.
134-159 S.C.-64
l9'U
I>hirP1ulranath
G,,ra1
v.
Sudhir Chand•a
Ghmh
Subba Rao I.
1964 -
Dhirendral!lllh
Gorai
v.
Sudhir Chandra
Ghoah
Subba Rt1Jl /.
1010
SUPREME COURT REPORTS
[1g64]
"It (s. 35 of the Act) is a provision relating to the
contents of the sale rproclamation and its effect,
to my mind, is to amend or supplement Or. 21,
r. 66(2) (a) which directs the Court to specify
in the sale proclamation "the property to be
sold". Any objection regarding non-compliance
with sec. 35 in specifying the property to be
sold is, in my view, a defect in the sale proclamation within the meaning of the second
proviso to Or. 21, r. 90, C.P.C. It follows that
an objection that the sale proclamation did not
conform to sec. 35 of the Bengal MoneyLenders Act cannot avail a judgment-debtor in
an application under Or. 21, r. 90, if he was
present at the drawing up of the ~ale proclamation and did not raise any such objection at
the time, nor can it avail a judgment-debtor
who, after receiving notice did not attend at
the drawing up of the sale proclamation at all."
We agree with this reasoning. Another Division Bench of
the Calcutta High Court, consisting of Guba and Banerjee,
JJ., in Maniruddin Ahmed v. Umaprasanna('), considered
the entire case law on the subject, including the decision
now under appeal, and differed from the view expressed by
S. R. Das Gupta and Mallick, JJ., in the decision now
under appeal and agreed with the view expressed by Akram
and Chakravartii, JJ., in Manidra Chandra v. Jagdish
Chandra( 2 ).
The said decisions are in accord with the
view we have expressed earlier. The contrary view is
sustaintd by the High Court in the present case on the
principle that the sale held in contravention of the provisions
of s. 3 5 of the Act was a nullity and, therefore, no question
of setting aside the sale within the meaning of 0. 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 3 5 of the Act is couched in a mandatory form and
it casts in terms a duty on the court to comply with its
r
(t) (1959) 64 C.W.N. 20.
(2) (1945) 50 C.W.N. 266 •. 270.
•
•
6 S.C.R.
SUPREME COURT REPORTS ion
provisions before a sale is held.
Prima fade 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('), 'Mookerjee,
J., after referring to Macnamara on "Nullity and Irregularities", 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 Jaw 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 whatever, or is
void and.incapable of being validated."
Whether a provision falls under one category or the other
is not easy of discernment, but in the ultimate analysis it
depends upon the nature, scope and object of a particular
provision. A workable test has been laid down by Justice
Coleridge in Holmes v. Russell('). which reads:
"It is difficult sometimes to distinguish between an
irregularity and a nullity; but the safest rule to
determine what is an irregularity and what is a
nullity is to see whether the party can waive
the objection; 'if he can waive it, it amounts to
an irregularity; if he cannot, it is a nullity."
A waiver is an intentional relinquishment of a known right.
but obviously an objection to jurisdiction cannot be waived,
for consent cannot give a court jurisdiction where there· is
none.
Even if there is inherent jurisdiction, certain provisions cannot be waived.
Maxwell in his book "On the
(I) (1908) J.L.R. 3S Cal. 61, 72.
(2) [18411 9 Dowl. 487.
1964 -
Dhire,idranatll
Gorai
"· .
Sudhir Chandra
Gho•h
Subba RIJO J.
1964
Dltlr~ndranath
Gorai
Y.
Sudhir Chandra
Ghosh
Subb1> Ra1> J.
1012
SUPREME COURT REPORTS
Interpretation of Statutes'', 11th Edn., at p. 375, describes
the rule thus :
"Another maxim which sanctions the non-observance
of a statutory provision is that cuilibet /icet
renuntiare juri pro se introducto. Everyone has
a right to waive and to agree to waive the
advantage of a law or rule made solely for the
benefit and protection of the individual in his
private capacity, which may be dispensed with
without infringing any public right or public
policy."
The same rule is restated in "Craies on Statute Law", 6th
Edn.,' at p. 269, thus :
"As a' general rule, the conditions imposed by
statutes which authorise legal proceedings ·are
treated a, being indispensable to giving the
court jurisdiction.
But if it appears that the
statutory conditions were inserted by the legislature simply for the security or benefit of the
parties to the action themselves, and that no
public interests are involved, such conditions
will not be considered as indispensable, and
either party may waive them without affecting
the jurisdiction of the court."
The Judicial Committee in AL. AR. Ve/layan Chettiar v.
Government of Madras(') pointed out that there was no
inconsistency between the propositions that the provisions
of s.
~O of the Code of Civil Procedure were mandatory
and must be enforced by the court and that they might be
,..
waived by the authority for whose benefit they were provided.
In that case the Judicial Committee 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. 3 5 of the Act was considered by a Division
Bench of the Calcutta High Court in Gaya Prosatl v. Seth
'f
(I) (1947] L.R. 74 I.A. 223. 228.
•
' '
6 S.C.R.
SUPREME COURT REPORTS
1013
Ohanrupwal Bha11dari(').
Dealing with this argument,
P. N. Muukerjee, J., speaking for the court, observed:
"'lt 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(') 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 3 5 one of them, are intended
for the benefit of the individual judgment
debtors and have no publi~ policy behind them.
Such provisions may be waived by the -person
for whose benefit the same were enacted."
A Division Bench of the Patna High Court in Sheo Dayal
Narain v. Musammat Moti Kuer('), speaking through
Meredith. J., in the context of the provisions of s. 13 of
the Bihar Monev-Lenders (Regulation of Transactions)
Act. I 939, which are pari materia with the provisions of
s. 35 of the Bengal Money-Lenders Act, 1940, tejected the
contention that a sale held in contravention thereof was a
nullity in the following words :
"Illegal the sale may have been, in the limited sense
that it was held in a manner at variance with a
mandatory statutory provision. That provision,
however, has no reference at all to the jurisdicrion of the Court. It affords no foundation for
( l l (1953) 58 C.W.N. 503. 508.
(2) 64 C.W.N. 20.
(3) (1942) I.LR. 2t Pat. 281, 286.
1964
1) himulr..,...111
Goral
v.
Sudhir Challd111
Ghosh
Subbll RllO I.
1964
Dhirendranath
Gorai
v.
Sudhir Chandra
Ghosh
Subba Rao J.
1014
SUPREME COURT REPORTS
[1964]
the contention that the sale was one which the
Court concerned had .no power at all to hold."
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 interests, but in the interests of the party that
waives it. In the present case the executing court had
inherent jurisdiction to sell the property. We have'assumed
that s. 35 of the Act is a mandatory provision. If so, the
question is whether the said provision is conceived in the
interests of the public or in the interests of the person affected
by the non-observance of the provision. It is true that many
provisions of the Act were conceived in the interests of the
public, but the same cannot be said of s. 35 of the Act,
which is really intended to rprotect the interests of a judgment-debtor and to see that a 1arger extent of his property
than is necessary to discharge the debt is not sold. Many
situations may be visualized when the judgment-debtor does
not seek to take advantage of the benefit conferred on him
under s. 35 of the Act; for instance, if the part of the
property carved out by the court for sale is separated from
the rest of his property, the value of the remaining property
may be injuriously affected by the said carving out, in which
case the judgment-debtor may prefer to have his entire 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. 3 5 of the Act indicates a contrary intention.
Under that proviso, "if the highest amount bid for the pmperty 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
',
;.
6 S.C.R.
SUPREME COURT REPORTS
1015
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
construction of s. 35 of the Act, that it is intended only
foi: the be.nefit of the judgment-debtor and, therefore, he can
waive the right conferred on him under s. 35 of the Act.
If that be the legal position, 0. XX!, r. 90 of the Code
of Civil Procedure is immediately attracted. The concurrent
finding of the courts is that by reason of the non-observance
of the provisions of s. 35 of the Act no substantial injury
was caused to the judgme.nt-debtor. Further, though notice
was given to the judgment-debtor, in one case he did not
file objections at all and in the other case, though the
judgment-debtor filed objections, he did not attend at the
drawing up of. the prodamation. The sales are, therefore,
not liable to be set aside under the terms of the said provision.
In the result the orders of the High Court are set aside
and those of the Additional Subordinate Judge are restored.
The appellants will get their costs throughout from the 1st
respondent. There will be one set of hearing fee.
Appeals allowed.
N. VAJRAPANI NAIDU AND ANOTHER
THE NEW THEATRE CARNATIC TALKIES LTD.,
COIMBATORE
(P. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO, J. c.
SHAH, N. RAJAGOPALA AYYANGAR AND S. M. S!KRI JJ.)
Afadras City Tena111.~· PriJtection Act, 1922 (Act 3 o/ 1922),.ss. 9, 12-··
uasr of land for purpo•• of •nacting buildlngl-lf l•as• not ,....,.
ed after twenty years lessor entitled to vacant possts&ion . of land
after demolishing building-A.ct permitting tenant
to
either
get
1964
Dhittndranath
Gorai
v.
S11dhir ChaJulra
Gho•lt
Subba Rao/.
1964
Morch 4.