1. This appeal in execution proceedings raises an interesting question as to whether if no notice under Order 21 Rule 66 (2) of the Code of Civil Procedure is served on the judgment-debtor, are the subsequent proceedings resulting in a sale void or voidable. Since on this question there is a conflict of opinion not only among the various High Courts in the country but even between the two learned Judges of this Court, the appeal has been referred to this Division Bench.
2. The few facts giving rise to the appeal preferred by the heirs of the original decree-holder may be stated. A final decree for partition of joint family properties was passed on 25th of July 1962 in Special Civil Suit No. 77 of 1948 and under the decree inter alia, defendant No.3 one Haribhau, was directed to pay Rs. 29,041.85 to defendant No.1 Ramchandra, Haribhau died on 21-7-1964 leaving behind him three sons, Gajanan, Shamrao and Anandrao (respondent No.1). On 14-10-1964 the decree-holder Ramchandra filed an execution application, being Special Darkhast No. 85 of 1964 for realisation of the amount of Rupees 29041.85 and certain immovable properties, being 1/2 share in three plots of land that had been allotted to deceased Haribhau under the decree, were got attached and the decree-holder prayed for sale of the same. On 26-4-1965 the executing Court ordered sale of attached properties under Order 21, Rule 64 and also directed a notice under Order 21, Rule 66 (2) being issued to the heirs of the deceased judgment-debtor Haribhau. Notices were admittedly served on Gajanan and Shamrao in July 1965 but there is a controversy whether it was served on Anandrao, the third son, (respondent No.1) or not. However, the proclamation was settled by the Court on 18th November, 1965 and on 6th December, 1965 the Court issued warrant of sale and proclamation. Eventually the properties were sold by a public auction on 19-4-1968 and it was knocked down to respondent No.2 as the highest bidder of Rs. 23,350/-. On 16-5-1968 Gajanan and Shamrao filed an application being Misc. Application No. 111 of 1968 for setting aside the sale on certain grounds but that application was dismissed sometime in December, 1970. Thereafter on 24-3-1971, that is, nearly two years and eleven months after the auction sale had taken place. Anandrao (respondent No. 1) filed an application being Misc. Civil Application no. 61 of 1971 under Order 21, Rule 90 read with Section 47 of the Code of Civil Procedure for setting aside the sale on the ground that notice under Order 21, Rule 66 (2) had not been served upon him. Ramchandra having in the meantime died his heirs (the present appellants) opposed the application on the ground that notice under Order 21, Rule 66 (2) had been served on Anandrao and also on the ground that the application was barred by limitation. It was contended by them that assuming that notice under Order 21, Rule 66 (2) was not served upon Anandrao, it was a mere irregularity in publishing and conducting the same and as such the application fell under Order 21, Rule 90 and ought to have been filed within 30 days from the date of the auction under Art. 127 of the Limitation Act, 1963 and as it was filed more than 2 years and eleven months after the sale it was barred by time. The auction purchaser (respondent No.2) also resisted the application and supported the contention of the heirs of the original decree-holder. Without deciding the factual question as to whether notice under Order 21, Rule 66 (2) had been served on respondent No. 1 or not, the executing Court decided the point of limitation as a preliminary point. Two decisions of this Court were cited before the learned Judge; one in the case of Dada Narayan v. Jaichand, : AIR1958Bom278 which has taken the view that such sale without service of the notice under Order 21, Rule 66 (2) is null and void and that the application falls under Section 47 and would be governed by Art, 137 of the Limitation Act and the other in the case of Suderabai v. Moreshwar, : AIR1959Bom178 which has taken the view that non-service of notice under Order 21, Rule 66 (2) is a material irregularity and the applicant is required to set aside the sale by making an application under Order 21, Rule 90 and as such it is governed by Art, 127 of the Limitation Act. When these two decisions expressing rival views were pressed before him by either side the learned Judge felt that the point raised was a ticklish one but he preferred to follow the view expressed in 60 Bom LR 380 and he held that the application in question fell under Section 47 and so was within limitation under Art. 137 of the Limitation Act; he thereupon directed the parties to lead evidence on the factual aspect as to whether the notice had been served on Anandrao or not. Against this order passed by the learned Judge on 11th August, 1971 the heirs of the original decree-holder have come up on appeal to this Court.
3. We have gone through the Misc. Civil Application No. 61 of 1971 preferred by respondent No.1 to the executing Court on 24-3-1971 and we may state that the only ground on which the auction sale held on 19-4-1971 and we may state that the only ground on which the auction sale held on 19-4-1968 was sought to be set aside by him was that notice under Order 21, Rule 66 (2) was not served upon him, and both in the lower Court as well as before us the matter was argued on the assumption that notice under Order 21, Rule 66 (2) should be taken not to have been served upon respondent No.1. Mr. Pendse appearing for the appellants has contended before us that the executing Court was in error in taking the view that the auction sale held on 19-4-1968 without service of notice under Order 21, Rule 66 (2) upon the judgment-debtor was null and void and that the application of respondent No.1 fell under Section 47 of Code of Civil Procedure. He urged that the provisions of Order 21, Rule 66 (2) should be held to be directory and not mandatory and as such any breach thereof would be mere irregularity - and in a given case even a material irregularity - and not an illegality and a sale held by the executing Court without service of notice under Order 21, Rule 66 (2) upon the judgment-debtor would be a sale with jurisdiction though held irregularity and would be liable to be set aside upon proof of substantial injury under Order 21, Rule 90. He submitted that Section 47, which required all questions relating to the execution, discharge or satisfaction of a decree arising between the parties to the suit and their representatives should be decided by an application in execution and not by a separate suit, only covered such execution sales which were null and void ab initio, that is to say, sales held by the executing Court without jurisdiction and according to him, the several decisions which have been enlisted in Sir Dinshaw Mulla's Commentary under Section 47 clearly show that in all those cases the Court was concerned with sales held by executing Court without jurisdiction and which were therefore, void ab initio. In support of his contention that an application to set aside a sale on the ground of non-service of a notice under Order 21, Rule 66 (2) fell under Order 21, Rule 90 and as such was governed by Art, 127 he relied on the decision of Justice Miabhoy in Sunderbal Dalichand Shet v. Moreshwar Mahadeo Gokhale, : AIR1959Bom178 . He also pointed out that a similar view has been taken by the Madras High Court in two decisions in AIR 1920 Mad 481 and AIR 1956 Mad 231 and also by the Andhra Pradesh High Court in AIR 1957 Andh Pra 185 (FB) and by the Kerala High Court in : AIR1959Ker382 and : AIR1971Ker8 (FB). He therefore, urged that the application preferred by respondent No. 1 to the executing Court will have to be regarded as having become barred by limitation, inasmuch as, it was not made within 30 days from the date of auction as required by Art, 127 of the Limitation Act. On the other hand Mr. Lalit appearing for respondent No. 1 contended that the provisions of Order 21, Rule 66 (2) should be held to be mandatory and a breach of such mandatory provisions must result in the subsequent proceedings including he sale being rendered null and void altogether, in which event, according to him, three would be no sale in the eye of law at all and there would be no question of the aggrieved party (judgment-debtor) being required to set aside the sale but the application would be for getting a declaration that the judgment-debtor's properties continue to belong to him notwithstanding the so called sale. He, therefore, urged that such an application would fall under Section 47 of the Code of Civil Procedure and would be governed by the residuary Art, 137 of the Limitation Act and since the present application of respondent No.1 had been filed within 3 years from the date when a right to file the application accrued, the same would be within the limitation. Naturally in support of his contention Mr. Lalit has relied upon the view expressed by Justice Mudholkar in the case of : AIR1958Bom278 . He pointed out that Justice Mudholkar had followed in earlier decision of Justice Vivian Bose in Narayan v. Ramachandra, . He further pointed out that the learned Judges who decided those cases had given reasons for taking the view that the provision of Order 21, Rule 66 (2) regarding service of notice was a mandatory provision. Mr. Lalit also relied upon the decisions of the Madras, Punjab , Assam and Allahabad High Courts in : AIR1955Mad233 , AIR 1961 Punj 495, AIR 1956 Assam 21, Air 1937 All 407, respectively. According to Mr. Lalit, the question whether initially the executing Court possessed jurisdiction to hold an auction sale of attached properties or not is not very material, for, even if the Court had such jurisdiction if the provisions of Order 21, Rule 66 (2) were regarded as mandatory, - and he urged that they should be so regarded, any breach of such mandatory provisions would render the subsequent proceedings including the sale of properties a nullity and if the sale was null and void, the application would be governed by Section 47 and would, if filed within three years, be in time under Art, 137 of the Limitation Act.
4. After having given our anxious consideration to the rival contentions that were urged before us, we are clearly of the opinion that the questions whether the executing Court initially possesses jurisdiction to sell properties in execution proceedings or not and when the executing Court gets such jurisdiction are questions beside the point and the real question that falls for determination is whether the provisions regarding service of notice contemplated by Order 21, Rule 66 (2) is mandatory or directory. There is no doubt that the executing Court will get jurisdiction to order sale of properties for realising the decretal dues depending upon what type of decree the Court is called upon to execute and whether some of the provisions of Order 21 are complied with or not. Such jurisdiction would be conferred upon the executing Court by the decree itself where it directs the sale of the property, as for instance a mortgage-decree or decree creating a charge and directing sale in default of payment. Where the decree itself does not give jurisdiction as in the case of a money-decree, ordinarily the execution application will give it jurisdiction if it contains a prayer that the money payable under it be realised by attachment and sale of some specified property of the judgment-debtor. Further in the case of a money decree, which is sought to be executed against the legal representative of the judgment-debtor who has in the meantime died, the jurisdiction is obtained by the executing Court after notice under Order 21, Rule 22 is served upon the legal representative and his objections if any are heard and disposed of but if no notice is given and the legal representative is not heard or even apprised of what is being done, the sale will be without jurisdiction; however in the case of a final mortgage-decree which is being executed against the legal representative of the deceased judgment-debtor an omission to issue notice under Order 21, Rule 22 will not render the sale a nullity but the sale would be voidable at the instance of the legal representative who can avoid it under Order 21, Rule 90 on proof of material irregularity or fraud and substantial injury. This position in law has been clearly enunciated in a Division Bench judgment of this Court in Mahadev Budhya v. Shantilal Mulji in : AIR1957Bom170 . In the present case admittedly the execution application, being Special Darkhast No. 84 of 1964, for realisation of Rs. 29.000 and odd by attachment and sale of certain specified properties was filed by the decree-holder on 14-10-1964 against the heirs and legal representatives of the deceased judgment-debtor; further admittedly the said properties which were in the possession of the heirs and legal representatives were attached under Order 21, Rule 54; and further admittedly the executing Court had on 26-4-1965 ordered the sale of the attached properties under Order 21, Rule 64, and attachment effected under Order 21, Rule heirs and legal representatives were not apprised of what was being done to their properties in execution. It is, therefore, clear that in this case the executing Court had jurisdiction to sell the properties in question. Even so, the question that arises for consideration in this appeal is whether the auction sale held on 19-4-1968 is null and void or voidable for non-service of notice under Order 21, Rule 66 (2) upon respondent No.1 one of the heirs of the judgment-debtor and the answers to that question, in our view, must depend upon whether the relevant provision of Order 21, Rule 66 (2) is mandatory or directory. It is obvious that if the said provision is regarded as a mandatory provision then clearly by a breach of such mandatory provision must necessarily result in rendering the subsequent proceedings including the sale a nullity, that is to say, the sale will have to be held null and void; but if the aforesaid provision is regarded as directory in character, then clearly a breach thereof would only render the subsequent proceedings including the sale voidable at the instance of the party aggrieved. Therefore, in the present appeal, in our opinion the main question which falls for determination is whether the provision contained in Order 21, Rule 66 (2) requiring notice to be given to the judgment-debtor for settlement of the proclamation of sale is mandatory or directory.
5. No, apart from the decided cases, we shall approach the question from the view point of what would be the proper and true construction of the relevant provision contained in Order 21, Rule 66 (2), and in order to decide what should be its proper construction it would be desirable to set out the provisions of Order 21, Rule 66 which run as follows :
'Proclamation of sales by public auction :
(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-debtor and shall state the time and place of sale, and specify as fairly and accurately as possible -
(a) the property to be sold;
(b) the revenue assessed upon the estate or part of the estate, where the property to be sold is an interest in an estate or in part of an estate paying revenue to the Government;
(c) any encumbrance to which the property is liable;
(d) the amount for the recovery of which the sale is ordered; and
(e) every other thing which the Court considers material for a purchaser to know in order to judge of the nature and value of the property.
(3) Every application for an order for sale under this rule shall be accompanied by a statement signed and verified in the manner hereinbefore prescribed for the signing and verification of the pleadings and containing, so far as they are known to or can be ascertained by the person making the verification, the matters required by sub-rule (2) to be specified in the proclamation.
(4) For the purpose of ascertaining the matters to be specified in the proclamation, the Court may summon any person whom it thinks necessary to summon and may examine him in respect to any such matters and require him to produce any document in his possession or power relating thereto.'
In the first place it is clear that the purpose or object of issuing the notice under Rule 66 (2) is to see that the proclamation of sale is properly drawn up and while settling the same both the judgment-debtor and decree-holder are afforded an opportunity to have their say in the matter. Secondly, sub-rule (2) used the expression 'shall' and declares that proclamation shall be drawn up after notice to the decree-holder and the judgment-debtor. The question is whether by reason, of the user of the expression 'shall' any imperative character is attributed to the provision or notwithstanding the use of the expression 'shall' the provision is intended to be directory, for, it is well settled that the mere use of the expression 'shall' is not decisive and may not necessarily impart any imperative or mandatory character to the provision. The provision will have to be considered in the context in which it occurs, the object for which it has been made, the importance that is intended to be attached to it, its relation to the general object intended to be secured by the enactment and several other relevant factors. It is true that other relevant factors. It is true that enactments regulating the procedure in Court are usually considered as imperative but even this normal rule of construction applicable to enactments regulating procedure in Court is subject to certain exceptions. The correct enunciation of the principle to be applied for construing statutory enactments will be found in Maxwell on The Interpretation of Statutes 12th Edition, where in on page 314 the following passage occurs :
'When a statute requires that something shall be done, or done in a particular manner or form, without expressly declaring what shall be the consequence of non-compliance, is the requirement to be regarded as imperative (or mandatory) or merely as directory (or permissive)? ...............
It is impossible to lay down any general rule for determining whether a provision rule', said Lord Campbell L. C., 'can be laid down for the construction of statutes, as to whether mandatory enactments shall be considered directly only or obligatory with an implied nullification for disobedience. 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'. And Lord Penance said : 'I believe as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject-matter consider the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act; and upon a review of the case in that aspect decide whether the mater is what is called imperative or only directory.'
Again on page 320 dealing with 'Rules of procedure' the following passage occurs :
'Enactments regulating the procedure in courts are usually construed as imperative, even where the observance of the formalities in question is not a condition exacted from the party seeking the benefit of the statute, but a duty imposed on a court or public officer, when no general inconvenience or injustice seems to call for a different construction.'
The aforesaid two passages clearly show that no hard and fast rule could be laid down for determining whether a particular provision is imperative or directory and in each case the Court has to look to the subject-matter, the importance of the provision that has been disregarded and the relation of that provision to the general object intended to be secured by the Act and in the light of these aspects decide whether the particular provision is mandatory or directory. It is also clear that though usually enactments regulating the procedure in Courts are construed as imperative, if general inconvenience or injustice requires a difference construction, such different construction should be put on the relevant provision. In Crawford's 'The Construction of Statutes'. 10th Edition, para 262 runs as follows :
'Mandatory and Directory or Permissive Words : Ordinarily the words 'shall' and 'must' are mandatory, and word 'may' is directory, although they are often used interchangeably in legislation. This use without regard to their literal meaning generally makes it necessary for the courts to resort to construction in order to discover the real intention of the legislature. Nevertheless, it will always be presumed by the court that the legislature intended to use the words in their usual and natural meaning. If such a meaning, however, leads to absurdity or great inconvenience, or for some other reason is clearly contrary to the obvious intention of the legislature, then words which ordinarily are mandatory in their nature will be construed as directory, or vice versa. In other words, if the language of the stature, considered as a whole and with due regard to its nature and object, reveals that the legislature intended the words 'shall' and 'must' to be directory, they should be given that meaning.'
6. The principles of construction stated in the aforesaid passages quoted by us from Maxwell and Crawford could be illustrated by referring to two or three decisions. In Montreal Street Railway Company v. Normandin reported in AIR 1917 PC 142 the verdict of a jury in an action was sought to be set aside on the ground that the trail was coram non judice and the verdict a nullity, because of series of infringements of elaborate and minute enactments made for the constitution of the juries. In the absence of any prejudice to the objector the Privy Council ruled that it would cause greatest public inconvenience if it were held that neglect to observe the provisions of the statute made the verdict of all the Juries taken from the old list ipso facto null and void so that no Jury trial could be held until a duly revised list had been prepared. The Privy Counsel pointed out that the objects sought to be achieved by these elaborate provisions for the mode of preparing the list seem to be three, namely, to distracter the burden of Jury service, to secure for courts effective list of Jurors and to avoid the selection of particular persons - to avoid packing and having regard to these objects that were aimed at, it was unnecessary and wrong to hold that the neglect of the provisions made the list null and void. In particular this is what the Privy Council has observed :
'When the provisions of a statute relate to the performance of a public duty and the case is such, that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons, who have no control over those entrusted with the duty, and at the same time, would not promote the main object of the Legislature, such provisions are to be held to be directory only, the neglect of them though punishable not affecting the validity of the acts done.'
It would be clear from the above decision that though in that case the main consideration which weighed with the Privy Council was serious general inconvenience that would be caused due to neglect of the performance of a public duty enjoined upon the Sheriff to revise the Juror's list as per the provisions contained in the Statute. Their Lordships have also indicated that even the consideration of injustice to persons who have no control over those entrusted with the duty would be another factor which could be taken into account while deciding the question whether particular provision should be regarded as mandatory or directory.
7. The second decision to which we would like to refer is the decision of the Nagpur High Court in the case of Tikaram Khubchand v. Hansraj Hazarimal, AIR 1954 Nag 241 where the question that arose for determination was whether the Second clause of the First Schedule of Arbitration Act, 1940 should be regarded as mandatory or directory. The relevant clause runs as follows :
'If the reference is to an even number of arbitrators, the arbitrators shall appoint an umpire not later than one month from the latest date of their respective appointments.'
Notwithstanding the use of the expression 'shall', the Nagpur High Court following the aforesaid passages appearing in Maxwell took the view that the aforesaid provision was not mandatory and non-observance of the same did not vitiate the award given by the arbitrators. The relevant head-note in the report is as under :
'No universal rule can be laid down for the construction of the statutes as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. When the command of the Legislature is disregarded, nullification may be the usual consequence. But the mere presence of the word 'shall' does not necessarily mean that proceedings in disregard of the requirement of the statute are null and void and the question whether it is so is in the main, governed by considerations of convenience and justice. An intention that the disregard of the provision should be followed by a nullification of the proceedings must not be attributed to the legislature when that result would involve general inconvenience or injustice to innocent persons or advent to those guilty of the neglect without promoting the real aim and object of the Act.'
The third decision to which we would like to refer is one more decision of the Privy Council in (1893) 20 Ind App. 176 Tassaduk Rasuk Khan v. Ahmad Husain concerning certain provision of Order 21 of the Code of Civil Procedure itself. Rule 68 of Order 21 (old Section 290) says that : '.......... no sale ............. shall, without the consent of the judgment-debtor, take place until after the expiration of at least thirty days in the case of immovable property, and of at least fifteen days in the case of movable property, calculated from the date on which the copy of the proclamation has been affixed on the Court-house of the Judge ordering the sale.' It is clear that the expression 'shall' has been used in the provision and what is more the provision is couched in negative or prohibitory words which are usually regarded as mandatory, inasmuch as it provides that no sale shall take place until after the expiration of 30 days etc. etc. Even so, when a sale was held before the expiration of the period mentioned in this rule the Privy Council in the sale was not null and void but would be voidable capable of being set aside on proof of substantial injury resulting from the irregularity. In effect, the Privy Council held that the above provision was not mandatory and that non-compliance of the same was a material irregularity within the meaning of O. 21, Rule 20.
8. In the light of the above principles of construction as illustrated by the aforesaid decisions we will have to consider as to whether the provision of notice contained in Order 21, Rule 66 (2) will have to be regarded as mandatory or directory. It is true that sub-rule (2) of Rule 66 used the expression 'shall' but the question would be one of intention of the Legislature and that will have to be ascertained having regard to the subject-matter the importance of the relevant provision and the relation of that provision to the general object intended to be secured by the enactment. The further question whether construction attributing imperative character to the said provision would cause serious inconvenience or injustice to innocent persons will have to be considered and if any such result is likely to follow it would warrant a different construction. Approaching the question from this angle we will first consider the scheme of Order 21 Civil Procedure Code and the stage at which the said provision occurs. Having regard to the scheme of execution of decrees as is to be found in Order 21, it will appear clear that in the case of a money decree the Court will receive jurisdiction to hold sale of the judgment-debtor's property no sooner an application for execution is filed before it in which the decree-holder prays for attachment and sale of the judgment-debtor's property. Such an application if it is made within two years and against the judgment-debtor himself, the Court proceeds to direct attachment of immovable property specified in the application; if it is made after a lapse of two years of it is against the heir or legal representative the Court first issues and serves notice under Order 21, Rule 22 and then proceeds to levy the attachment. Such attachment of immovable property is ordered under Order 21 Rule 54, the attachment being in the nature of prohibitory order directed and served upon the judgment-debtor or his legal representative preventing him from transferring or charging the property in any way and all persons from taking any benefit from such transfer or charge. (Vide Form No. 24 in Appendix E to the First Schedule). The prohibitory order is proclaimed at some place on or adjacent to such property by beat of drum or other customary mode and a copy of the order is also affixed on a conspicuous part of the property as also on the court-house and where he property is land paying revenue to the Government in the office of the Collector of the district in which the land is situate. In other words, when attachment under Order 21 Rule 54 takes place, the judgment-debtor or his legal representative is informed of the proceedings that are initiated by the decree-holder for realising the dues by way of attachment and sale of the property. If even after such notice of attachment, the command of the Court pertaining to the payment of the decretal amount is not respected by the judgment-debtor, the decree-holder makes an application for sale of the property and the Court directs or orders the sale fo the property under Order 21 Rule 64. Then comes the stage of drawing up and settlement of proclamation of sale under Order 21 Rule 66 and sub-rule (2) or Rule 66 provides that such proclamation shall be settled by the executing Court after notice to the decree-holder and the judgment-debtor. Sub-rule (3) provides that along with the application for order for sale the decree-holder or his agent has to furnish a signed and verified statement containing so far as known to him the matters required by sub-rule (2) to be specified in the proclamation. In other words, the particulars to be inserted in the proclamation are initially provided by the decree-holder or his agent and the terms of proclamation are thereupon settled after notice to the decree-holder and the judgment-debtor. The object of giving notice to the judgment-debtor under sub-rule (2) of Rule 66 appears to us very clear and that is that before the terms of proclamation are settled the judgment-debtor should get an opportunity of having his say about the particulars or matters that are to be specified in the proclamation, though it must be admitted that in practice, apart from mentioning what he has to say about the said particulars or matters, he always utilizes the opportunity to put forth his objections, if he has any, to the sale of the property. It must be observed however that the judgment-debtor has ample opportunity to raise whatever objections he has to the attachment or sale of his property before the executing Court no sooner the attachment under Order 21 Rule 54 is effected. So the main purpose of notice under Rule 66 (2) is to give the judgment-debtor an opportunity to dispute the correctness of the particulars furnished by the decree-holder under sub-rule (3) and see that the correct or proper particulars are mentioned in the proclamation of sale. Rule 67 prescribes the mode of making and publishing the proclamation and it provides that every proclamation shall be made and published as nearly as possible in the manner in which attachment is effect under Rule 54 sub-rule (2). Under Rule 67 (20 such proclamation is also required to be published either in the Official Gazette or in a local newspaper the proclamation is required to be published by beat of drum, by affixing a copy thereof on a conspicuous part of the property sought to be sold and where the property happens to be a land paying revenue to the Government, in the Officer of the Collector of the district in which the land is situate. These provisions pertaining to publication of proclamation clearly suggest that apart from individual notice that is required to be served upon the judgment-debtor for settlement of proclamation under Rule 66 (2), even otherwise the judgment-debtor is apprised of the fact that his property is proclaimed to be sold by reason of the manner in which the proclamation is directed to be published. In other words, even if individual notice under Rule 66 (2) is not served upon the judgment-debtor, the judgment-debtor is apprised of the fact that such proclamation has been drawn up and issued by reason of its publication in the manner provided and even thereafter within the thirty days that must elapse before the sale is held, there is nothing to prevent the judgment-debtor from approaching the Court for rectifying any serious or grievous mistake that might have crept in the proclamation already published and nothing prevents the Court if it feels that rectification is necessary to direct the issuance of a rectified or a fresh proclamation. In the light of the aforesaid scheme pertaining to attachment and sale of the judgment-debtor's property, which we have discussed above, it will be clear that the judgment-debtor or his legal representative has ample opportunity to object to attachment and/or sale of the property and it is also clear that even if individual notice under sub-rule (2) of Rule 66 is not served upon him, he is not prejudiced, inasmuch as, as a result of the publication of the proclamation of sale in the prescribed manner he has notice of the settled proclamation and if necessary he can approach the executing Court to get the proclamation altered or rectified for any serious mistake or infirmity before the actual sale takes place. Looked at from this angle, it seems to us that service of notice under Rule 66 92) upon the judgment-debtor will have to be regarded as directory and not mandatory. In other words, having regard to the subject-matter, the importance of the relevant provision, the purpose served by it, its relation to the general object intended to be secured by Order 21 which must be realisation of dues made payable by the command of the Court, the provision of notice under Rule 66 (2) will have to be regarded as directory and nor mandatory involving implied nullification of the sale. The second reason why we feel that the provision as to notice under Rule 66 (2) should be regarded as directory and not mandatory is this, Sub-rule (2) provides that proclamation shall be drawn up after notice to both the decree-holder and the judgment-debtor. From construction point of view such notice will have to be regarded as either mandatory for both or directory for both. Considering the question from the point of view of the decree-holder will have to be regarded as directory, inasmuch as, under sub-rule (3) it is the decree-holder himself or his agent who furnishes, as far as he can ascertain the particulars or matters to be specified in the proclamation to the executing Court along with the application for sale of the property. If the matters that are to be specified in the proclamation to the executing Court along with the application for sale of the property. If the matters that are to be specified in the proclamation are required by law to be furnished by the decree-holder or his agent himself alongwith the application for sale under sub-rule (3), non-service of notice as contemplated under sub-rule (2) upon the decree-holder will have to be regarded as innocuous or at least not a serious flaw. In the case of a decree-holder, therefore, the scheme of Rule 66 itself suggests that the service of notice upon him under sub-rule (2) was intended by the Legislature to be directory and not mandatory and if it is directory in the case of decree-holder, it is difficult to hold that it should be regarded as mandatory in the case of judgment-debtor, for, it is one single provision contained in sub-rule (2) which provides for notice to both. The third and most important aspect which will have a bearing on the question is the interests of the stranger auction-purchasers who come on the scene when the property is knocked down to them at Court auctions. It is obvious that if the provision to notice under Rule 66 (2) upon the judgment-debtor is regarded as mandatory, then non-compliance of that provision will cause grave injustice to stranger auction-purchaser who normally bid at the auction in belief and trust that whatever is required to be done by the Court, has been properly done and that they will get the property for which they have bargained by giving bid at the auction. Ordinarily the auction purchasers who are the strangers to the proceedings between the parties before the Court do not and are not called upon to ascertain first whether a particular formality or procedure prescribed under the rules contained in Order 21 relating to the execution of the decree is observed or not and they have no control over those who are supposed to observe the formalities and rules and these stranger auction-purchasers are bound to suffer if their bargains are declared null and void for non-observance of the formalities or rules. Not only grave injustice would be caused to the auction purchasers but even the administration of justice would be hampered inasmuch as Court auctions would not attract any bidder and the main object sought to be achieved by the enactment namely satisfaction of the decree-holders' dues by attachment, and sale of the property will also be defeated. Having regard to these considerations of general inconvenience and injustice to stranger auction-purchasers, we fell that notwithstanding the user of the expression 'shall' in sub-rule (2) of Rule 66, the provision regarding notice contained therein will have to be regarded as directory and any breach thereof will have the effect of rendering the subsequent proceedings including the sale voidable and not void.
9. Three is yet one more aspect concerning certain provisions of Order 21 of the Code of Civil Procedure which would afford a priori reasoning for coming to the conclusion that the provisions as to notice contained in Order 21, Rule 66 (2) will have to be regarded as directory and the breach thereof a mere irregularity. Ordinarily under the scheme of execution proceedings as contained in is sold in execution for realisation of a money decree under Order 21, Rule 64, it is usual to have the said property attached under Order 21, Rule 54; unless, of course, the property happens to be already attached under a warrant of attachment before judgment obtained by the plaintiff in the suit. But what would happen if such property is sold without attaching the same under Order 21, Rule 54 of the Code of Civil Procedure? This Court in Namdev Krishna Chaudhari v. Govardhan Nanabhai Gujarathi, 41 BomLR 463 = AIR 1939 Bom 277 has taken the view that an omission to attach property not merely does not render the sale a nullity but such sale cannot even be regarded as held with any irregularity and for this view Section 51 of the Code of Civil Procedure has been relied upon, which clearly provides that the Court may order execution of the decree, by attachment and sale or by sale without attachment of any property. However, as has been pointed out in the aforesaid Bombay decision, most of the other High Courts have taken the view that absence of attachment is a material irregularity and the subsequent sale is merely voidable and could be set aside on proof of substantial injury under Order 21, Rule 90 of the Code of Civil Procedure vide, ILR (1899) All 311, Sheodhyan v. Bholanath, : AIR1931Cal35 Nareshchandra Mitra v. Molla Ataul Huq, and AIR 1947 Mad 213. Swaminatha Iyer v. K. G. Krishnaswami Iyer. Now it is obvious that an omission to attach the property before effecting its sale is fraught with more serious consequence and more prejudicial to the judgment-debtor than the sale of the attached property without notice under Order 21, Rule 66 (2) having been served upon him and even so, if the former omission is regarded as a mere irregularity, according to the High Courts of Allahabad, Calcutta and Madras, it would be reasonable to hold that the other type of omission viz, omission to serve notice under Order 21, Rule 66 (2) upon the judgment-debtor which is fraught with less serious consequences should be regarded as an irregularity rendering the sale voidable and not an illegality rendering the same null and void.
10. We shall now deal with the two decisions - on reported in 60 Bom LR 380 and the other in AIR 1948 Nag 1977 on which reliance was placed by Mr. Lalit which have taken the contrary view. We may state that the other decisions of the Madras, Punjab and Assam High Courts on which he relied have more or less followed the aforesaid two earlier decisions and the reasoning contained therein, and therefore it is really necessary for us to consider the reasoning of the said two decisions. We may also state that in the former case Mr. Justice Mudholkar has held without service of notice on the judgment-debtor under Order 21, Rule 66 (2) falls under Section 47 of the Code and not under Order 21, Rule 90 thereof, inasmuch as in his view the provision as to notice to the judgment-debtor in Rule 66 (2) is mandatory. In coming to the conclusion that the said provision of O. 21, R. 66 (2) is mandatory and learned Judge has principally relied upon and adopted the reasons given by Justice Vivian Bose in the other decision in . Before we deal with the reasons given by Justice Bose in the case of AIR 1948 Nag 177 for coming to the conclusion that the provision as to notice contained in Order 21, Rule 66 (2) was mandatory it must be pointed out that Counsel made a concession before the Court that the application to set aide the sale preferred in that case was not and could not be under Order 21, Rule 90 of the Code and that it fell under Section 47. The concession made before the learned Judge appears in the following passage occurring at page 178 of the report :
'As it is agreed that the present application could not have been made under any one of those rules (meaning Rr. 89, 90 or 91) it follows that the matter falls under Section 47 and in any case I so hold.'
In other words, on a concession made before him that the application to set aside the sale preferred by the applicant in that case was under Section 47 and not under Order 21, Rules 89, 90 and 91 of the Code of Civil Procedure the learned Judge decided the matter. However, in fairness it must be mentioned that the question as to whether the provision of Order 21, Rule 66 (20 was mandatory or not was argued before him and the learned Judge considered that question apart from the concession that was made before him. The learned Judge has clearly expressed the opinion that notice under Order 21, Rule 66 (2) was mandatory unless of course the judgment-debtor appeared without notice and waived it and in his view the provision being mandatory the sale held in derogation of that provision was null and void. For this view the reasoning is to be found in paragraphs 16, 17 and 18 of the judgment. Analysing the same it will appear clear that the learned Judge has emphasised three aspects. In the first, place, he has noticed that mandatory language has been used, referring thereby to the use of the expression 'shall' occurring in the provision. With respect, we have already pointed out that such user of the expression 'shall' is not decisive and it is a question of ascertaining the real intention of the Legislature. Secondly, the learned Judge has contrasted the provisions of Order 21, Rule 66 (2) with the provisions of O. 21, Rule 22 of Civil P. C. and after pointing out that whereas under Order 21, Rule 22 certain exceptions have been made, no exceptions of any kind had been provided for while enacting Order 21, Rule 66, he has proceeded to observe that this contrast led to the inference that the provisions of Order 21, Rule 66 were mandatory. With great respect we feel that the contrast pointed out in between the aforesaid two provisions will have no bearing on the question whether provision of Order 21, Rule 66 (2) should be regarded as mandatory or not; it is true that some exceptions have been made while enacting Order 21, Rule 22 but that aspect may afford a ground for holding that the main provision contained in Order 21, Rule 22 should be regarded as mandatory as has been held by the Privy Council but it is difficult to say that because exceptional cases have been provided for while enacting the provision of notice in O. 21, R. 22 and no exceptions have been made while enacting O.21, R. 66 (2) the latter provision must be regarded as mandatory. Both the provisions it is true pertain to notice but they apply to different situations and serve different purposes and as such the contrast, in our humble opinion, cannot lead to the inference drawn. Thirdly, it has been pointed out that sub-rule (2) requires certain things to be stated in the proclamation imperatively or compulsorily viz. it shall state the time and place of the sale, while certain other things such as description of property, the revenue assessed thereon, the incumbrances etc, are required to be stated 'as fairly and accurately as possible'; in other words, it has been pointed out that sub-rule (2) itself makes a distinction between certain matters which are required to be stated compulsorily and certain other matter in mentioning which greater flexibility is permitted and the learned Judge has reasoned that since the same sentence requires the issuance and service of notice as well as the mentioning of time and place of sale the former, namely issuance and service of notice will have to be regarded as compulsory or mandatory. With greatest respect, we may point out that if sub-rule (2) is carefully scrutinised, it will appear clear that the flexibility is not in the act of specifying the matters (like description, land revenue, incumbrances etc.) but the flexibility pertains to the accuracy aspect of those matters which are required to be sated in the proclamation and the second 'shall' applies not merely to stating the time and place of sale but also to specifying the other matters. This will be clear from a fair reading of the first sentence of sub-rule (2) which runs thus: 'Such proclamation of sale shall be drawn up after notice to the decree-holder and the judgment-debtor and shall state the time and place of sale and specify as fairly and accurately as possible - the property to be sold etc.' In other words, the other matters - other than time and place of sale - have got to be mentioned or specified in the proclamation but flexibility is permitted as regards their accuracy. With the greatest deference to the learned Judge, therefore, we are unable to agree that the aspects pointed out by him really warrant the inference that the provision as to notice contained in Order 21, ?Rule 66 (w) should be regarded as mandatory. Dealing with the case of : AIR1958Bom278 Justice Mudholkar has emphasised one additional aspect and has observed that where a thing can be done only after issue of a notice it necessarily follows that it can only be done after such a notice has been served. In other words, the learned Judge has read into the sub-rule by implication a prohibition that no proclamation can be settled except after service of notice on the judgment-debtor. It is obvious that such a negative prohibition is not to be found in the sub-rule in express terms but it has been read into the same by implication because of the use of the expression 'shall'. In our view, having regard to the context and juxtaposition of the relevant sub-rule, its importance, the purpose served by it and the fact that no prejudice would be caused to the judgment-debtor by its non-compliance as explained earlier, it is not possible to read into the provision such prohibition by implication. The learned Judge has proceeded to observe that the jurisdiction of the Court to sell a property under Rule 66 (2) could only be derived after service of notice but with great respect as explained earlier, the question is not of jurisdiction of the Court to sell the property, for such jurisdiction, as stated earlier, is derived by the executing Court depending upon what type of decree it is called upon to execute and certain provisions contained in Order 21, but the question is whether after having obtained jurisdiction to sell the property if the Court commits an error or omits to issue any notice required by law it would amount to an illegality rendering the subsequent sale void or to an irregularity rendering the sale voidable on proof of substantial inquiry and that would depend upon whether the relevant provision of which breach is committed is mandatory or directory. In view of the above discussion with great respect we are unable to accept the view expressed in : AIR1958Bom278 and for the reasons indicated by us above we are clearly of the view that the provision as to notice contained in Order 21, Rule 66 (2) will have to be regarded as directory.
11. We shall now briefly refer to the decisions on which reliance was placed by Mr. Pendse in support of the view which we have taken on the correct interpretation of the provisions of Order 21, Rule 66 (2) of the Code of Civil Procedure. We may mention that he principally relied upon the decision of Justice Miabhoy in : AIR1959Bom178 and further pointed out that similar view has been taken by the Madras High Court in two decisions reported in AIR 1920 Mad 481 and AIR 1956 Mad 231, by the Andhra Pradesh High court in AIR 1957 A P 185 and by the Kerala High Court in : AIR1959Ker382 and : AIR1971Ker8 (FB). However, we feel that it is not necessary to refer to all the decisions in detail but it will be enough if we refer to the Bombay decision on which he principally relied. In the case of : AIR1959Bom178 Justice Miabhoy has held that non-service of notice under Order 21 Rule 66 (2) upon the judgment-debtor was a material irregularity within the meaning of Order 21, Rule 90 and that such material irregularity would be in publishing and conducting of the sale and an application to set aside the sale would properly fall under Order 21, Rule 90 and not under Section 47 of the Code of Civil Procedure. It must be pointed out, however, that before the learned Judge, who decided the case, the judgment of Justice Vivian Bose in was cited and Justice Miabhoy has distinguished that case on certain basis which does not appear to us to be correct or proper. In his view the Nagpur case was distinguishable on the basis that it was a case of total omission to issue a notice under Order 21, Rule 66 while the case before him was a case where notice had been directed to be issued but had not been served upon the judgment-debtor. With respect we may point out that the distinction sought to be made was really no distinction at all, for if the facts as appearing in the Nagpur case are scrutinised, it will appear clear that it was also a case where notice had been directed to be issued but had not been actually served and in fact Justice Bose throughout his judgment has issued the expression 'non-issue' and non-service' interchangeably. In our opinion, with respect, therefore, the Nagpur decision could not be distinguished on the basis the learned Judge. However, the learned Judge has further gone on to consider the question whether non-service of notice under Order 21, Rule 66 (2) would be a material irregularity in 'publishing or conducting' the sale as contemplated by Order 21, Rule 90 and after negativing the contra contention urged in that behalf he has taken the view that the expression 'publication of sale' in O. 21, Rule 90 was wide enough to include the aspect of non-service of notice under Order 21, Rule 66 (2) upon the judgment-debtor. He has expressed the view that the proceedings relating to sale commenced from the time an order for sale was made under Order 21, Rule 64 and that any further proceedings started by the Court thereafter were necessarily the steps taken by the Court in order that a prospective sale may be proclaimed and that settlement of a proclamation of sale for which notice is issued under Order 21, Rule 66 to the judgment-debtor was a step towards preparation and publication of sale and as such non-service of such notice upon the judgment-debtor was material irregularity inpublishing the sale falling under Order 21, Rule 90 of the Code of Civil Procedure. We are in respectful agreement with this latter view expressed by the learned Judge. But it must be pointed out that the question as to whether the provision as to notice contained in Order 21, Rule 66 (2) was mandatory or directory was neither canvassed nor discussed by the learned Judge in his judgment. However, as we have stated earlier, on a proper construction of Order 21, Rule 66 (2) we are clearly of the view that the provision as to notice contained therein will have to be regarded as directory and not mandatory and non-service of notice upon the judgment-debtor thereunder will only render the subsequent sale voidable at the instance of the judgment-debtor, who will have to prefer an application for setting aside the sale under Order 21, Rule 90 of the Code of Civil Procedure and he can only succeed on proving substantial inquiry to him. In this view of the matter, it is clear that the application preferred to the executing Court by respondent No.1 was an application falling under O. 21, Rule 90 of the Code of Civil Procedure and not under Section 47 and as such the same was governed by Article 127 of the Limitation Act. Since admittedly it was filed long after the period prescribed by that Article had expired it must be held to have been barred by limitation.
12. In the result, we allow the appeal and set aside the order passed by the learned Judge and dismiss the application preferred by respondent No.1 for setting aside the sale as being barred by limitation. There will be no order as to costs.
13. Appeal allowed.