1. Defendants 1 to 5 are the appellants of whom defendant 3 is dead and the other defendants on record are his legal representatives. The plaintiff brought a suit for declaration of title and recovery of possession under the following circumstances. The plaintiff is a cosharer landlord of the estate within the ambits of which the disputed holding lies. He instituted rent Suit No. 5633 of 1927-28 for recovery of his share of rent but impleaded 12 other cosharer landlords as pro forma defendants in order to constitute the suit in the form conformable to the provisions of Section 199 of the Orissa Tenancy Act. He obtained a decree and there is no dispute that the said decree was a rent decree and would carry the same effect as that obtained either by a sole landlord or the entire body of landlords for the total arrears of rent due in respect of the holding. As the holding, however, had been mortgaged to the appellants in the year 1914 and a suit for enforcement of the mortgage was instituted on 28th May 1927 being Original Suit (Mortgage) No. 232 of 1927, the mortgagee obtained a preliminary decree on 5th November 1927 and the same was made absolute on 17th November 1928. After the preliminary decree in the mortgage suit and-before the same was made final, the plaintiff, as a cosharer landlord put the aforesaid rent decree into execution and himself became a purchaser at the execution sale, on 16th May 1928. The plaintiff took delivery of possession through Court, on 18 th August 1928, and continued in possession till he was dispossessed by the appellants on 20th August 1941, while the defendants mortgagees took possession of the disputed property as auction purchasers in execution of the final mortgage decree--the auction sale having taken place on 15th March 1940. The plaintiff wanted restoration of possession by an application to the executing Court before whom the mortgage-decree-execution was pending under Order. 21, Rule 100, Civil P. C. He lost the proceeding, by an order of the executing Court, dated 17th January 1042. He instituted the present suit, on 13th January 1943.
2. Both the Courts below have decreed theplaintiff's suit finding that as an action purchaser,in execution of a rent decree, he acquired theholding under Section 212, Orissa Tenancy Act, and,as such, be purchased it free from all encumbrances, the disputed mortgage being one suchencumbrance. The defendants have come up insecond appeal.
3. The crucial point for consideration is whether the Courts below are right in coming to the conclusion that the rent decreee already referred to was executed, in compliance with the provisions of Section 212, Orissa Tenancy Act. There can be no manner of doubt that the provisions of the section are mandatory, and it must have to be examined in the present case whether the procedure adopted for the execution was or was not in contravention of the said provisions. The relevant portion of the section, that is, Sub-section (2), of the section, reads:
'When one or more cosharer landlords, having obtained a decree referred to in Sub-section (1) or a decree in a suit framed under Section 199, applies, or apply for the execution of the decree by the sale of the tenure or holding, give notice of the application for execution to the other cosharers.'
4. Unfortunately, there seems to be come apparent conflict of views, here and there, in the reported decisions with regard to whether compliance with the provisions in all its material details is necessary or a substantial compliance will do. Both the Courts below have been very greatly influenced, rather, have considered themselves bound, by a decision of the Patna High Court which is no doubt, in point, to wit, Bacha Singh v. Daro Singh, A. I. R. (19) 1932 pat. 264 : (11 Pat. 498).
5. Before discussing the decisions on the point, I shall address myself to how in the present case the provisions of the sub-section, already quoted are said to have been violated. It is not controverted nor can it be that otherwise good and valid rent decree can lose its force and effect as such, if it is not executed as a rent decree. The holder of a rent decree has two remedies, namely, either to proceed against the holding or tenure in respect of the arrears of which the decree has been obtained, or to proceed against other properties. In this respect, a special protection is given to the cosharer landlord in the provisions of Section 212 so as bow to obtain a rent decree and how to execute it, as such, so that the auction purchaser may acquire the holding of tenure as the case may be. Therefore, even though a cosharer landlord might have bad obtained a rent decree he might lose the benefit if he does not follow the procedure for its execution so as to make the holding pass at the auction sale. As I have already said, there were 12 cosharer landlords. The plaintiff in the plaint except saying that he obtained a rent decree in a suit framed under 8. 199, Orissa Tenancy Act and that he executed the decree by service of processes of attachment and other processes lawfully on the locality, did not aver that he had served the notice of execution against the holding on all the cosharer landlords without exception. The defendant in his statement in a general way attacked the plaintiff's averment that the decree obtained by him was a rent decree or that it was executed as such. In this state of pleading an explicit issue was cast between the parties and they went into evidence on this point. None of them can therefore complain that he was taken by surprise though Mr. B. N. Das, the learned counsel for the respondent suggested that it was so and wanted to gag Mr. Sen by urging that he had not taken up this point, which involves a question of fact, in the Courts below. This objection is not justified. The plaintiff himself, instead of resting content with the pleadings, went on filing certified copies of the order sheet of the rent execution case to show that there was a direction by Court to issue notice to the cosharer landlords under Section 212; be also brought into record the actual notices that had been sent out, and the service reports showing the manner in which they had been served on the cosharer landlords. These documents are Exs 6 and 6 (a). On reading them, it is found that there is no mention of one of the 12 cosharer landlords. His name is Radha-nath Das, as it appears from the khewat filed in the Court- below and Badhanath's son has been examined by the defendant who says that his father had and he still has 3 pies and odd share in the estate. Obviously enough EX. 6 shows that the cosharer landlords 2 to 6 belonging to village Pakhar were served and Ex. 6 (a) shows that the cosharer landlords 8 to 12 belonging to village Anantapur were also served with notice of the execution. From the khewat as well as from the evidence of the son of Eadhanath Das, it appears that he too belonged to Anantapur. If he was intended to be served with notice, we would find hia name mentioned in Ex. 6 (a). Mr. Das wants to stand upon the presumption, that an official act must be presumed to have been done in accordance with rules and laws. This argument should have carried very great force, had he, as I have said, stopped short on filing the order sheets only. The presumption pleaded is not a conclusive one. The evidence makes it clear that one of the cosbarer landlords was not given notice within tbe meaning of Sub-section (2) of Section 212. Thus it is clear enough that the Sub-section wag not fully complied with though there was an attempt to do so.
6. The question that then arises is what is the consequence. In the Patna case relied upon, the facts were almost similar as in the present ease. One of the defendants in the mortgage suit pleaded that he bad purchased the mortgaged property in execution of a rent decree as such and that his purchase was free from the mortgage. On this the plaintiff mortgagee raised the issue that the imperative provisions of Section 158B (2), Bengal Tenancy Act, had not been strictly complied with, and that the defendant concerned was not entitled to the benefit of an auction purchase in execution of a rent decree. Section 158B (2) is identically in the same terms as Section 212 (2). In fact, the latter section has been borrowed without any modification from the Bengal Tenancy Act and has not since undergone any change. The relevant words in the sub-section are:
'The Court shall before proceeding to sell the tenure or holding, give notice of the application (or execution io the other coaharers.'
His Lordship, the learned Chief Justice of the Patna High Oourt who decided the case relying upon a decision of the Calcutta High Court, Rajani Kanla v. Rahaman Gazi, 27 C. W. N. 765:(A. I. E. (11) 1924 Gal. 408), observed that the object of the Sub-section (Seciton 158B (2)), Bengal Tenancy Act, waa to protect the cosharers and if it is not complied with, they and they alone have a grievance and it is not open to a third party to take advantage of that, and allege that the sale is wholly invalid. The failure to effect notice is a mere irregularity and the only person entitled to complain of it is the cosharer affected by it. It is open to a cosharer to waive the benefit of the section,
7. This pronouncement necessitates an exa. ruination of the case relied upon by His Lordship (viz Rajani Kanta v. Bahaman Gazi, 27 C. W. N. 765: (A. I. R. (11) 1924 Cal. 408). The facts of that case were quite different and I have no doubt that the decision arrived at was fully justified. There certain occupancy holding had been purchased by two gentlemen, Asutosh Ghose and Arunodoy Ghoae who did register their purchase (private) with the landlords. One of the landlords as a cosharer brought a suit for recovery of his share of arrears of rent and constituted bis suit, for the purpose, in the matter prescribed in Section 148A, Bengal Tenancy Act equivalent to Section 199, Orissa Tenancy Act. He obtained a decree in the presence of his cosharer landlord but in course of execution he did not serve the said cosharer, by name, Tagore with notice under Section 158B. The conflict of title that was agitated in that case was between the previous unauthorised purchasers and the purchaser at the execution sale in execution of the decree obtained by a cosharer landlord. The other cosharer landlord to whom notice of execution being taken against the holding, waa not given, did himself appear in the execution proceedings and applied to withdraw, towards the satisfaction of his share of rent in arrear, out of the sale proceeds of the execution Bale. He was allowed to do so. It may be noted here that the protection that is sought to be given to the cosharer landlords in the words of Sir Courtney Terrell, the Chief Justice of the Patna High Court was in the case availed of by the cosharer. He was a party to tbe decree which was undoubtedly a rent decree and he, without a notice specifically addressed to him for the purpose, interested himself in the proceedings of the sale which was a purported sale of the holding and ap. propriated the sale proceeds towards the arrears then outstanding in his favour. By this act he recognised the auction purchase and the purchaser as such and was by his own conduct bound thenceforward to regard him as the occupancy rayat of the holding. Therefore, tbe auction purchaser was one who was accepted by all the landlords as the purchaser of the occupancy right in the holding. In this view, his right waa certainly superior to that of the private purchaser or was the only recognisable right as against the landlords. The unauthorised transferees therefore who had never cared to get themselves recorded in the landlord's papers, been obviously'ignored tbe rent decree having been obtained against the recorded tenant the transferor in the presence of the entire body of landlords. His Lordship Mukherji J, who delivered the leading judgment in the aforesaid Calcutta decision observes while differing from two decisions of that Court on the point, namely Sarip HocHan v. Tilattama Debi, 43 I. C. 3 : (A. I. R. (7) 1920 Cal. 655) and Ahamad Biswas v. Binoy Bhusan, 23 c. w. N. 931 : (A. I. R. (6) 1919 cal. 402) pointed out that in the two last quoted oases the cosharers concerned bad challenged the validity of the sale in execution whereas in the case before him the legality of the sale was not only not questioned but to use the words of His Lordship
'The cosharer has adopted the sale, withdrawn his share of the purchase money and granted mutation of name to the purchaser.'
On these observations His Lordship drew the conclusion in the following words :
'It may consequently be inferred that he (the cosharer landlord) knew of the sale and acquiesced therein. Can it be maintained, then, in such circumstances, that the Bale was either a nullity or a sale inoperative as a sale under the Bengal Tenancy Act.'
Thereafter His Lordship while examining the scope and object of Section 158B, defines the line of distinction between cases in which non-observance of oertain rule of procedure howsoever imperatively expressed does not go to the root of the Court's jurisdiction and those in which it does. He makes out the well-known distinction whether any imperative provision is inserted in a statute on grounds of public policy or for the benefit of particular individuals. In the former case violation of the rule of procedure affects the Court's jurisdiction and invalidates the proceeding, be it a sale or a decree or an order. Whether the object of Section 158B and for the matter of that of Section 212 is or is not one of public policy is left at large though left to myself, I take a different view with great respect and so does my learned brother as it appeared to me in course of the hearing ; but however as the Question does not strictly arise in this case, I leave it open. The fact, however, remains that in the case decided by His Lordship Mukherji J. the coaharer had, for all the purposes for which it was necessary to give him notice under Section 168B (2), been a party to the execution proceedings. The position here too could have been different if it could have been shown that the cosharer landlord Radhanath Das who was omitted from the notice of execution had either in the course of the execution proceedings or later acquiesced in the sale and accepted the auction purchaser as the tenant. No such case has been made out.
8. Under the circumstances, we are constrained to observe that the decision of the Patna High Court already referred to should not have been accepted by the Courts below as the last word on the subject. In that very Court the point has been differently decided in two later decisions : Kameshwar Singh v. Bishwanath Jha, A. I. R. (34) 1947 Pat. 33: (25 pat. 267): Lakshmi Narayan v Bhupendra Prasad, A. I. R. (35) 1948 Pat. 143 : (1947 P. W. N. 133). I was myself a party to the earlier decision which has been followed in the later. There it has been stated, in unmistakable term, that the provisions of Section 158B (a) are mandatory, and sale in contravention thereof as a sale of the holding is without jurisdiction. By this I do not mean to say that there is no sale but that the sale in such cases is of the right, title and interest of the judgment-debtor. It is worth mentioning that his Lordship, Sir Gourtney-Terrell, the Chief Justice of the Patna high Court in the case of Rambeas v. Akhauri Raj Mohan, A. I. R. (19) 1932 Pat. 304 : (139 I. C. 535) was being asked to hold that the sale was void and he declined to accept the contention. The result, therefore, is that there was a sale of the right, title and interest of the judgment-debtor but not of the holding. One later case of the Calcutta High Court is of the same view. It is the case of Jabed Ali v. Surendra, Nath, 42 C. L. J. 477 : (A. I. R. (13) 1926 Oal. 351). It is a judgment in appeal from the judgment of B. B. Ghose J. Ghose J. has elaborately discussed the point and I am in entire agreement with his reasonings, which were upheld by the Court of appeal under the Letters Patent. His Lordship Chose J. says, Section 158B requires that in order to sell a tenure (or holding) by one or more cosharer landlords, all the remaining cosharers should be made parties to the suit and also that when one or more cosharer landlords having obtained a decree in a suit properly filed applies for execution of a decree by the sale of the tenure notice of the' application for execution should be given to all the cosharers and it was necessary that the provisions must be strictly followed in order to give complete title to the auction purchaser and it will not be sufficient to omit one of the cosharers from the proceeding even though be might be a party in a different capacity. In the appellate judgment the case reported in Rajani Kanta v. Rahman Gazi, 27 c. w. N. 765 : (A. I. R. (11) 1924 cal. 408) has been referred to and his Lordship Greaves J. observes :
'Reliance was placed on the decision in the case of Rajni Kanta v. Sheikh Bahtnan, 27 C. W. N. 765 : (A. I. R. (11) 1924 Cal. 408). This seems to us to be a decision which depends upon the facts of the case and cannot be taken as having laid down any principle of law. We do not think that the obligation of surviving cosharers is sufficiently carried out by serving notices, on some of them.'
9. In the result, it follows that the holding did not pass to the plaintiff at the auction sale at which he purchased. He has purchased the equity of redemption.
10. The next point is how to adjust the rights between the appellants as mortgagee decree-holders auction purchasers and the plaintiff auction purchaser of the equity of redemp. tion. Ordinarily the latter shall be entitled to redeem the former provided he has been given an opportunity to redeem. Mr. Das, the learned1 counsel for the respondent contends that he should be given a further opportunity to redeem, but unfortunately the plaintiffs purchase is hit by the doctrine of lis pendens. His purchase, as I have shown, had taken place during the pendency of the mortgage suit, which is one of the suits contemplated in Section 52, T. P. Act. Tshall quote a passage, in this connection (based upon a decision of the Calcutta High Court, Har Sankar v. Shew Gobind, 26 cal. 996 : 4 c. w. N. 317), from Sir H. S. Gdur's Law of Transfer, 7th Edn., vol. I, p. 599 :
'Thus where a person purchased at an auction held under Sections 13 and 54 of the Revenue Sale Law, the share of an estate sold for non-payment of the arrears of assessment, and at the time of such purchase a salt to enforce an existing mortgage on the property was pending it was held that the auction purchaser took the property subject to the decree subsequently passed, and in execution ot which the mortgagee waa competent to bring the property to sale, but that the sale made to the auction purchaser was so far valid as it was not inconsistent with the rights of the mortgagee in that suit, and that, therefore, he was competent to redeem the mortgagee, butonly, of course before the confirmation of the sale held in execution of the mortgage-deerae. In other words, in such a case the purchaser acquires no more than the equity of redemption of the mortgagor and no right inconsistent with those of the litigating parties during the pendency of whose suit the transfer was effected.'
In applying the doctrine of lis pendena law does not make any difference between a transfer inter vivos or an involutionary transfer. As such the plaintiff could only avail himself of the right of redemption till the sale in execution of the mortgage decree waa confirmed. He stands in the same position as the mortgagor judgment-debtor in the mortgage suit and is bound by whatever fortunes or misfortunes befell him in the mortgage suit and in the execution proceedings in it. Under the circumstances he haa no remedy by way of redeeming the mortgage,
11. Next it is contended that even though plaintiff's auction purchase was not in execution of a rent decree, as such, yet the debt which was satisfied by the proceeds of the auction sale being rent due in respect of a holding waa, according to the provisions of Section 74, Orissa Tenancy Act, a first charge on the holding. Section 74 of the Act must be read with Section 212. The purchaser may have the benefit of the first charge, if and only if, it is enforced in the manner provided in the statute that creates it, any other view would make Section 212 wholly nugatory. There is no substance, therefore, in this submis. sion of Mr. Das.
12. The result is that the plaintiff's suit must be dismissed, the judgments and decrees of the Courts below reversed. The appeal succeeds and is allowed with costs of this Court.
13. I agree and would like to add a few observations. The procedure in a suit by a cosharer landlord for arrears of rent is laid down in Section 199, Orissa Tenancy Act, and it provides how a cosharer landlord can obtain a rent decree. Section 212 lays down the procedure for executing such a decree. When one or more cosharer landlords having obtained a decree in a suit framed under Section 199 applies or apply for the execution of the decree by the sale of the tenure or holding, the Court shall, before proceeding to sell the tenure or holding, give notice of the application for execution to the other cosharers. It is no longer in dispute in this case that one of the cosharer landlords haa not been served with notice of the execution although Exs. 6 and 6 (a) clearly show that all the other cosharer landlords had been served with the notices contemplated under Section 212. The question is as to whether the result of the sale that is held by the rent Court without notice to all the cosbarer landlords would be to pass the holding or merely the right, title and interest of the judgment-debtor as if it waa a money decree. That would depend upon whether we hold Section 212, Sub-section (2) to be imperative, or merely a directory rule, non-compliance with which need not necessarily vitiate the sale. The question as to whether a rule or law is mandatory or directory has often been discussed but one rule is well-established and that ia that all rulea of procedure are to be regarded aa mandatory. Whether non compliance of the rule ia by the party or by the Court, the result ia the same, namely, that it would result in rendering the result of the proceeding a nullity. Another rule that ia equally well-established is that where a provision of law is enacted for the benefit of a person, non-compliance with it is merely an irregularity, But where the prohibition is intended for the benefit of a class of persona or is based upon public policy the enactment is always to be regarded as mandatory. In the case reported in Bacha Singh v. Daso Sinhgh, A. I. R. (19) 1932 pat. 281: (ll pat. 498) the learned Courtney-Terrell C. J., says that the object of Sub-section (2) of Section 158B, B. T. Act corresponding to Section 212 (2), Orissa Tenancy Act, ia the protection of the cosharera, That may be and is perhaps one of the objects of the enactments, but, in my opinion, the rule is enacted as much to protect the interest of the cosharer landlords as, on the object of the Legislature, to protect intending auction purchasers at a sale held by the rent Court. The object seems to be that an auction purchaser should know whether he has purchased the holding of the judgment debtor or merely his right, title and interest. As to whether the result is the one or the other would depend upon whether the sale is on behalf of or for the benefit of the entire body of the cosharer landlords or is merely at the instance of one. I am, therefore, not inclined to restrict the language of Section 212 (2) as having been intended for the protection of the cosharers only. Accordingly I agree with the view of his Lordship Ghose J. in Jahed Ali v. Surendra Nath, 42 c. L. J. 477 : (A. I. R. (13) 1926 cal. 3fil) which is also the view held down by my Lord in Kameshwar Singh v. Bishwanath Jha. A. I. E. (34) 1947 Pat. 33 : (26 Pat. 267) and the later Patna case Lalcshmi Narayan v. Bhupendra Prasad, A. I. R. (33) 194B pat. 143 ; (1947 P.W. N. 33). The result of the sale held at the instance of the plaintiff, without notice to one of the cosharers landlords, must, therefore, be regarded aa having passed merely the right, title sad interest of the judgment-debtors as if it was a money decree.
14. On the second point raised by the respondent, I am in entire agreement with the reasoning and the conclusion of my Lord. The point ia too obvious to need discussion. The plaintiff purchased at the rent sale on 16th May 1928 and the preliminary decree in the mortgage suit was passed on 5th November 1927. It ia, therefore, clear that the purchase in the rent court sale was subsequent to the mortgage decree and the mortgagee was under no obligation to implead the plaintiff as a defendant in his suit. By the sale he stepainto the ehoea of the mortgagors who had been given the option to redeem and therefore, the right to redeem came to an end with the court sale in execution of the mortgage decree. The plaintiff consequently has lost his right to redeem the mortgage. The result is that the plaintiff is entitled to no relief.