04 March 1964
Supreme Court
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DHIRENDRA NATH GORAI AND SUBAL CHANDRASHAW AND OTHERS Vs SUDHIR CHANDRA GHOSH AND OTHERS

Case number: Appeal (civil) 85 of 1961


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PETITIONER: DHIRENDRA NATH GORAI AND SUBAL CHANDRASHAW AND OTHERS

       Vs.

RESPONDENT: SUDHIR CHANDRA GHOSH AND OTHERS

DATE OF JUDGMENT: 04/03/1964

BENCH: SUBBARAO, K. BENCH: SUBBARAO, K. GUPTA, K.C. DAS DAYAL, RAGHUBAR

CITATION:  1964 AIR 1300            1964 SCR  (6)1001  CITATOR INFO :  RF         1981 SC 693  (5,6)

ACT: Execution-Court  sale of property in execution of a   decree in  respect  of  a  loan-Judgment-debtor  not  objecting  to valuation  even  after  service  of  notice-Application  for setting aside the sale on the ground of 1002 non-compliance  of  the provisions of s. 35  of  the  Bengal Money  Lenders  Act-Maintainability-Sale  if,   valid-Bengal Money  Lenders Act, 1940 (10 of 1940), s. 35-Code  of  Civil Procedure, 1908 (V of 1908), O.XXI, rr. 64, 66 and 90.

HEADNOTE: In  execution  of a decree passed in a  mortgage  suit,  the appellant  annexed in the execution application  a  Schedule comprising  of  11  properties sought to  be  sold  for  the satisfaction of the claim.  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 he  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 sold.  The 1st respondent then filed an application  in  the executing court for setting  aside  the said sale under O.XXI, r. 90 of the Code of Civil Procedure, inter  alia, on the ground that s. 35 of the  Bengal  Money- Lender’s 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, the High Court held  that though there had not been any substantial  injury to  the 1st respondent, the provisions of s. 35 of  the  Act were mandatory and. therefore, the infringement 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 said provision was only illegal but not  a nullity  and, therefore, it could be set aside only  in  the manner and for the reasons prescribed in O.XXI, r. 90 of the

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Code  of Civil Procedure, and further that, as  the  respon- dents  did not attend at the drawing up of the  proclamation of sale, the sale could not be set aside at their instance. Held:     The non-compliance 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 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. Ashram Thikadar v. Vijay Singh Chopra, I.L.R. (1944) 1  Cal. 166, distinguished. Manindra  Chandra v. Jagdish 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  held that  it was intended only for the benefit of the  judgment- debtor and, therefore, he could waive the right conferred on him under s. 35 of the Act. Case law reviewed.  1003 If  that be the legal position, O.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.  35  of  the  Act  no substantial injury was caused to the judgment-debtor.   Fur- ther, though notice was given to the judgment debtor’ in one case he did not file objection at all and in the other case, though  the  judgment-debtor filed objections,  he  did  not attend  at  the drawing up of the proclamation.   The  sales are,  therefore, not liable to be set aside under the  terms of the said provision.

JUDGMENT: CIVIL APPELLATE JURISDICTION: C.A. Nos. 85 and 86 of 1961. Appeals from the judgment and decree dated November 23, 1954 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). Sukumar  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 SUBBA  RAO  J.-These two appeals raise the question  of  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. 1, executed a first mortgage in favour of one Provash Chandra Mukherjee, since deceased, for a sum of  Rs. 12,000/-.   Respondent  No. 1 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-

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1004 debtor  was directed to pay a sum of Rs. 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 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 O. 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 1st respondent,  the provisions  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  preli- minary 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 application in the  7th Court of the Additional Subordinate Judge, Alipore, for  the execution of the said decree.  In the  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 (if Rs.  14,000/- and  respondent No. 9 purchased Lot No. 2 at a price of  Rs. 19,600/-.   On  July 21, 1951, the 1st respondent  filed  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

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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 the outset the relevant provisions of the  Act  and the Code of Civil Procedure. 1006 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 XXI, 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               the same.               Order XXI, r. 66.               (1)   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  sale 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 1007               debtor  and shall state the time and place  of               sale, and specify as fairly and accurately  as               possible- -               (a) the property to be sold;               Order XXI, r. 90.

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             (1)   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 aside the  sale  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 as  required               by rule 22 of this Order :               Provided  (i) that no sale shall 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               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 1008 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 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  pro- clamation 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  judgment- debtor  as  the court considers to be saleable  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 O. 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 ground of  a material  irregularity or fraud in publishing or  conducting

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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 irregularity in publishing or conducting the sale the court under the first proviso  to O.  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  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 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(1)  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 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 O. 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,  JJ.,  in  Manindra 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. 3 5 of the Act, thus : (1) I.I..R. [1944] 1 Cal. 166. 134-159 S.C.-64                (2) (1945) 50 C.W.N. 266,270. 1010               "It (s. 35 of the Act) is a provision relating               to  the contents of the sale proclamation  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

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             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. 2 1, r. 90, if he was present at the               drawing  up of the sale 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 Guha and Banerjee,  JJ., in Maniruddin Ahmed v. Umaprasanna(1), 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 sustained  by  the High  Court  in the present case on the principle  that  the sale held in contravention of the provisions of   s.  35  of the Act was a nullity and, therefore, no question of setting aside the sale within the 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 (1) (1959) 64 C.W.N. 20.                (2) (1945) 50 C.W.N. 266, 270.  1011 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(1),  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  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(2), 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,

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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 (1) (1908) I.L.R. 35 Cal. 61, 72.   (2) [1841] 9 Dowl. 487. 1012 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   licet   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  as 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.  Vellayan  Chettiar  v. Government  of  Madras(1)  pointed out  that  there  was  no inconsistency  between the propositions that the  provisions of  s. 80 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. 35 of the Act was considered by  a  Division Bench of the Calcutta High Court in Gaya Prosad v. Seth (1)  [1947] L.R. 74 I.A. 223, 228.  1013 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(2) 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 intended for the benefit of the individual               judgment  debtors  and have no  public  policy

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             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(3), speaking through  Meredith, J.,  in the context of the provisions of s. 13 of the  Bihar Money-Lenders (Regulation of Transactions) Act, 1939,  which are pari materia with the provisions of s. 35 of the  Bengal Money-Lenders Act, 1940, rejected 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 jurisdiction of  the  Court.   It               affords no foundation for (1)  (1953) 58 C.W.N. 503. 508. (2)  64 C.W.N. 20. (3)  (1942), I.L.R. 21 Pat. 281, 286. 1014 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  manda- tory 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. 3 5 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  protect  the interests  of  a judgment-debtor and to see  that  a  larger 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. 3 5  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. 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  1015 not   like  to  go  through  the  entire  sale   proceedings

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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. 3 5 of the Act, that it is  intended only for the benefit 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, O. 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.  35  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 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 proclamation.  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.