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1959 Supreme(Cal) 211
HIGH COURT OF CALCUTTA
B. K. Guha, B. N. Banerjee
MANIRUDDIN AHMED - Appellant
Versus
UMAPRASANNA MUKHERJEE - Respondent
A. F. O. O. 112 Of 1953 With Application
Decided On : SEPTEMBER 21, 1959
APURBADHAN MUKHERJI, BARUN ROY CHOUDHURY, C.N.LAIK, HARINARAYAN MUKHERJEE, MUKTIPADA CHATTERJI, RAJENDRA NATH DAS, RAM NARAYAN DEB, TATHAGATA MUKHERJI
A judgment-debtor can waive the benefit of Section 35 of the Bengal Money-Lenders' Act, which requires the court to specify the property to be sold at a price sufficient to satisfy the decree, and non-compliance with Section 35 does not render the sale without jurisdiction but is merely an irregularity that can be waived by the judgment-debtor.
Headnote:
BENGAL MONEY-LENDERS ACT - SECTION 35 - SALE PROCLAMATION - SPECIFICATION OF PROPERTY - WAIVER BY JUDGMENT-DEBTOR - EFFECT OF NON-COMPLIANCE.
Fact of the Case:
The appellants, as transferees of the right of redemption from the mortgagors, challenged an auction sale held in execution of a mortgage decree, alleging fraudulent suppression of notice under Order 21 Rule 66 of the Code of Civil Procedure and improper publication of the sale proclamation. Additionally, they contended that the sale was bad due to non-compliance with Section 35 of the Bengal Money-Lenders' Act, which required the court to specify the property to be sold at a price sufficient to satisfy the decree.
Finding of the Court:
The executing court and the lower appellate court dismissed the appellants' objections, finding no evidence of fraudulent suppression of notice or improper publication of the sale proclamation. The lower appellate court also held that non-compliance with Section 35 of the Bengal Money-Lenders' Act was at most a material irregularity and that the appellants had not sustained any substantial injury as a result.
Issues: 1. Whether a judgment-debtor can waive the benefit of Section 35 of the Bengal Money-Lenders' Act, which requires the court to specify the property to be sold at a price sufficient to satisfy the decree? 2. Whether non-compliance with Section 35 of the Bengal Money-Lenders' Act renders the sale without jurisdiction or is merely an irregularity that can be waived by the judgment-debtor?
Ratio Decidendi: 1. The court held that a judgment-debtor has the right to waive the benefit under Section 35 of the Bengal Money-Lenders Act, either expressly or impliedly, at the time of settlement of the sale proclamation. This right of waiver is based on the principle that a party can waive the benefit of a law or rule made solely for their private benefit and protection, without infringing any public right or public policy. 2. The court held that non-compliance with Section 35 of the Bengal Money-Lenders' Act does not render the sale without jurisdiction. Such a defect is not one that goes to the root of the court's jurisdiction to sell and is merely an irregularity that can be waived by the judgment-debtor. This is because the provisions of Section 35 are intended for the benefit of individual judgment debtors and have no public policy behind them.
Final Decision: The court dismissed the appeal, holding that there was no substance in the appellants' objections and that the sale was valid.
( 1 ) THIS appeal is directel against an order, made bv the learned District Judge of Murshidabad, affirming an order of refusal to set aside an auction sale, passed by a learned Subordinate Judge.
( 2 ) RESPONDENTS Nos. 9 to 40 are the mortgagors and Respondents Nos. 1 to 5 are the mortgagees. The appellants are transferees of the right of redemption from the mortgagors.
( 3 ) RESPONDENTS Nos. 1 to 5 obtained a mortgage decree and put the decree in execution, in Mortgage Execution _ Case No. 42 of 1942. The execution case remained stayed for a considerable time because of a notice issued under Section 34 of the Bengal Agricultural Debtor's Act. The stay was vacated only on 8-6-1949. In the auction sale hold on 16-12-1950 Respondents Nos. 6 to 8 auction-purchased the mortgaged property.
( 4 ) ON 4-4-1951, the present appellants, as petitioners, filed an application, under Order 21 Rule 90 of the Code of Civil Procelure, to have the execution sale set asile. The said application was registered as Misc. Case No. 7 of 1951.
( 5 ) IN the said Miscellaneous Case it was contended that the notice under Order 21 Rule 66 of the Code of Civil Procedure had been fraudulently suppressed and not served on the petitioners (the present appellants) and that there had been no proper publication of the sale proclamation. The result was it was contended, that the mortgaged properties were sold at a grossly inadequate price, to the substantial injury of the judgment-debtors (the appellants herein ).
( 6 ) THE executing Court negatived all the contentions of the judgment-debtors appellants and dismissed the Miscellaneous Case,
( 7 ) THERE was an appeal taken by the judgment-debtors appellants to the Court of appeal below. Apart from the objections taken before the first Court, an additional objection was taken in appeal to the effect that the mortgaged properties having had been put to sale in disregard of the provisions of Section 35 of Bengal Money-Lenders' Act, the sale was bad and should be set aside.
( 8 ) THE Court of appeal below agreed with the findings of the first Court on the point of service of notice under Order 21 Rule 66 of the Code of Civil Procedure and publication of the sale proclamation. The Court of appeal below was further satisfied that the judgment-debtors had not sustained any substantial injury as a result of the sale. On the additional point raised in appeal, namely, that the sale was bad because of the non-compliance, by the executing Court, of the provisions of Section 85 of the Bengal Money-Lenders' Act, the Court o appeal below came to the following conclusion :"non-compliance with the provisions of Section 35 of the Bengal Money-Lenders' Act by the learned trial court was at most a material irregularity and no evidence was adduced to establish that the applicant judgment-debtors had sustained any substantial injury because of that material irregularity. "the propriety of the Order passed in appeal is being disputed in this Second Miscellaneous Appeal.
( 9 ) CONFRONTED with the question as to how a Second Miscellaneous appeal would be available to the judgment-debtors appellants, against an appellate Order passed on an application under Order 21 Rule 90 of the Code of Civil Procedure, Mr. Apur-badhan Mukherjee, learned Advocate for the appellants, contended that an objection under Section 35 of the Bengal Money-Lenders' Act was in substance an objection under S, 47 of the Code of Civil Procedure find a Second Miscellaneous appeal would, therefore, lie. In support of his contention Mr. Mukherjee relied on a judgment by Chunder J. , in Civil Revn. Case No. 2925 of 1952, Abinash Chandra Tana v. Bhushan Chandra Maity, dated 22-1-1954, which is reported in substance in AIR 1955 NUC (Cal) 4279. The relevant passage from the judgment is to the following effect;"in the present case, therefore, the Court had absolutely no jurisdiction to hold the sale because o non-compliance with Section 35 of the Bengal
