T.U. Mehta, J.
1. The question involved in both these appeals is whether the want of notice to judgment-debtor under sub-rule (2) of Rule 66 of Order 21 C. P. Code amounts to 'material irregularity in publishing or conducting sale' within the meaning of Rule 90 Order 21 C. P. Code or whether it amounts to a jurisdictional error or any illegality vitiating the subsequent sale proceedings as void ab initio.
2.. Short facts of the case are that the appellant Babubhai Harilal Patni of Appeal No. 190/71 had filed a suit against the Respondent for recovery of mortgage amount. That suit ended in a preliminary decree against the respondent on 17-3-1959. Final decree was thereafter passed on 3rd March 1967 for sale of their mortgaged property. Pursuant to this final decree the said appellant filed Darkhast No. 24/67 in the Court of Civil judge (Jr. Division) at Lathi on 4th May 1967 for realising the amount of Rs. 7969-57 by selling the mortgaged property. On that Darkhast application the Executing Court passed an order of sale on the same day in the following words:-
'Decretal house which is mortgaged with the plaintiff (J. C.) and which is ordered to be sold for recovery of the mortgage dues of the plaintiff (J. C.) in decree, be sold off by public auction. Sale proclamations be issued and be sent for publication according to rules. Panchnama to ascertain approximate market value of the property be made prior to commencement of sale. 'Dt. 4-5-196-1'.There after sale proclamations were issued on 6th May 1967 ordering the sale of the mortgaged property to take place from 27th June 1967 to 29th June 1967. Panchanama of the valuation of the property was prepared on 12-5-1967. According to this panchnama the property was valued at Es. 6500/-. It is evident from these facts, and the same is also an admitted position, that the sale proclamations were issued without any notice to the judgment-debtor as contemplated by Order 21 Rule 66 (2) of the Civil Procedure Code.
3. The day before the actual sale took place i. e. on 26th June 1967, the judgment-debtor, who is the present Respondent, filed an application to the Executing Court as found at Ex. 6. By this application he requested the Court to take the matter on board and on the same day he filed another application as found at Ex. 8, raising the contention that he was not served with any notice under Order 21 Rule 66 (2) of the C. P. Code and therefore ' the execution could not proceed further. This application was kept for hearing on the next day i. e. on 27th June 1967. But on that day the Respondent Judgment-debtor did not appear before the Court with the result that the said application was dismissed for want of prosecution.
4. On 27th June 1967, the auction sale proceeded as originally ordered by the Executing Court. On that day the highest bid which was received was for Rs. 5750/-. The matter was thereafter placed before the Court on 29th June 1967 for receiving the final bid. On that day the Court received the final bid for the auctioned property at Rupees 7,151/-. This bid was given by the appellant Babubhai Karimbbai Jasani of L. P. A.
No. 189 of 1971. This bid was accepted by the Court and the matter was adjourned for confirmation of the. sale after 30 days i.e. after 28-7-1967.
5. Before the said date of 28th July 1967 arrived, the Respondent-Judgment-debtor filed his objections to the sale as found at Ex. 10. Reference to this application raising objections shows that it raised two grounds,
one relating to sale price alleging that the said sale price was inadequate as the property was worth Rs. 22,000/-. The other ground related to the dues which a decree-holder could claim under the decree. The first ground was given up while the second ground was decided against the judgment-debtor by the Executing Court. The point to be noted with regard to this objection application Ex. 10 is that it did not raise any objection to the effect that the sale should not be confirmed as the Judgment-debtor was not served with any notice contemplated by sub-rule (2) of Rule 66 of Order 21. After disposing of this application
Ex. 10 the Executing Court confirmed the sale under Rule 92 of Order 21 on 1st August 1967.
6. Being aggrieved by this, the judgment-debtor approached the Court of the District judge, Amreli in appeal. During the course of the hearing of that appeal, the judgment-debtor's advocate raised a contention
that the sale proceedings were vitiated because the judgment-debtor was not served with any notice under sub-rule (2) of Rule 66 before settling the terms of sale proclamation. Though this ground was not raised before the Executing Court, the learned District judge thought that it was purely a ground of law. He, there-
fore, allowed the judgment-debtor to raise that ground and came to the conclusion that the sale proceedings were vitiated because the Executing Court had failed in issuing any notice to the judgment-debtor under Rule 66 (2) before settling the terms of the said sale proclamations. Before the learned District judge the decree-holder raised a contention that the sale could not be set aside without joining the auction-purchaser as a party to the proceeding. The learned District judge rejected this contention on the ground that the
matter was covered not by Rule 90 of Order 21 C. P. Code but by Section 47 thereof.
7. Being aggrieved by the above referred decision of the learned District judge, the Decree-holder as well as the auction-purchaser preferred separate second appeals to this Court. These Second Appeals were register-
ed as Appeals Nos. 706 and 707 of 1968. These appeals came up for hearing before S. H. Sheth, J. who took the view that the want of notice to the judgment-debtor under Rule 66 (2) of Order 21 amounted to a jurisdictional error as well as an illegality which vitiated the subsequent sale proceedings. He, therefore, confirmed the order passed by the learned District judge, with the result that the Decree-holder as well as the Auction-purchaser have preferred these letters Patent Appeals. It should be noted here that the learn
ed Single judge has, in taking the above stated view, relied upon the decision given by Mudholkar J. in Dada Narayan Thakre v.Jaichand Nagorao reported in : AIR1958Bom278 as well as the decision given by Bose J, in Narayan Purushottam Bansod v. Ramchandra Mudgalji AIR 1948 Nag 177.
8. As already stated above, it is an admitted position that before issuing the sale proclamations the learned judge of the Executing Court has not issued any notice to the judgment-debtor as contemplated by Rule
66 (2). The question therefore, is what is the effect of the want of this notice? Can it be said that for want of this notice subsequent proceedings of sale are rendered void, or can it be said that they are rendered void
able. If it is held that the Executing Court had no jurisdiction to sell the mortgaged property, without issuing notice to the judgment debtor under rule 66 (2), the subsequent proceedings of sale must be declared as void abinitio. But if it is held that want of notice under Rule 66 (2) is a material irregularity which does not touch the jurisdiction of the Court to proceed with the sale, then the sub sequent sale proceedings would not be void though they would be voidable at the instance of the judgment-debtor under Rule 90 of
Order 21 C. P. Code. This Rule 90 of 0. 21 provides that where any immovable property has been sold in execution of a decree. The decree-holder, or any person whose interests are affected by the sale, may apply to the Court Lahore, and Andhra Pradesh have taken the view that want of. notice to judgment-debtor under Rule 66 (2) to set aside the sale on the ground of material renders the subsequent sale proceedings voidable (See Kuttikrishna Nair v. Madhavan Nai AIR 1959 Ker irregularity or fraud in publishing or conduct382; N Chellayyan v. G. Pillai AIR 1971 Ker 9 (1711); Kanhya Lal v. Megh Rai AIR 1927 Lab 84; Hara Singh it. This Rule is governed by a pKovisov. Labh Singh AIR 1935 Lab 962; and Satyanarayanamurthy v. Bhavanarayana AIR 1957 AP 185 (FB)), the which shows that no sale shall be set aside High Courts of Nagpur and Punjab have taken the view that such sale proceedings are void ab initio. (See on the ground of irregularity or fraud unless Narayan Pursbottam v. Ramchandra MudgaIji AIR 1948 Nag 177 and Balwant Rai v. Amrit Kau AIR 1961 upon the facts proved, the Court is satisfied Punj 495). The Court of Bombay has taken different views in three decisions which are Dada Narayan Tbakre v. Jaichand Nagorao : AIR1958Bom278 , Sundrabai v. M. M. Gokhale : AIR1959Bom178 ; and that the applicant has sustained substantial in Sundrabai Rainchandra v. Anandrao (75 Born LR 198) : : AIR1973Bom301 . In Dada Narayan's case jury by reason of such irregularity or fraud. Mudholkar, J. has held, relying upon the decision given by Nagpur- High Court in AIR 1948 Nag 177, that However, if it is believed that the subsequent want of notice to the judgment-debtor as contemplated by Rule 66 (2) Order 21 goes to the root of the sale proceedings were void ab initio, on jurisdiction of the Court, and therefore, the subsequent sale is a nullity. in Sundrabai v. M. M. Gokhale, count of the fact that notice contemplated by a Rule 66 (2) was not issued to the judgment debtor then the matter would be governed by Section 47 of the Civil Procedure Code
9.On perusal of the reported decision we find that the Courts in our country are divided on the question whether such defects in the proceedings are void or voidable While on one hand the High Courts of Kerala,
Lahore and Andhra pradesh have take n the view that want of notice to judgment debtor under rule of 66(2) renders to syvsequent sale proceedings voidable see kuttikrishna nair V.Madhuvan nair AIR 1959 ker 9(FB).Chellayyan views are taken. by the High Court in different decisions. An earlier decision of that High Court in Neelu Neithiar v. Subramania AIR 1920 Mad 481, it was held that failure to give notice to the judgment-debtor before settling a proclamation of sale would not of itself invalidate the sale. Such a view was taken by that High Court in two subsequent decisions reported in AIR 1945 Mad 499 and : AIR1952Mad377 . However, in a subsequent decision in Jagannath v. Perumal Naidu AIR T955 Mad 233, a contrary view was taken holding that where the judgment-debtors were not served with notices, under Order 21 Rule 66 the entire sale proclamation and the subsequent sale held in their absence should be deemed to be absolutely null and void 'ab initio' in which case the rights in the properties of the judgment-debtors will not pass to the purchaser at all. This latter decision reported in : AIR1955Mad233 of ccurse does not refer to the above referred previous decisions of that very High Court. Thereafter in Karunakaran v. Chathu, reported in AIR 1956 Mad 231 that very Court held that nor-,proxy a mere failure to issue a notice under Order 21 Rule 66 to the judgment debtor would not make the sale null and void but would only be an irregularity, especially if the evidence shows that the judgment debtor was very well aware of the sale Proclamation and the sale, even though a notice under Order 21 Rule 66 was not given to him. This review of the different decisions given by the different High Courts in our country shows that all the High Courts have not shared the same view on this point.
10. We do not propose to discuss all these conflicting decisions. But we may mention that for the proposition that lack of notice under Rule 66 (2) of 0. 21 to the judgment debtor renders the subsequent sale proceedings void ab initio, the leading decision is that of Bose, J. in the above referred case reported in AIR 1948 Nag 177. For the contrary view, exhaustive treatment is found in the Bombay case reported in : AIR1973Bom301 to which reference is already made above.
11. The learned Single judge out of whose judgment these appeals are preferred, has mainly relied upon the decisions given by Mudholkar, J. in AIR 1958 Born 278, who, in his turn, has relied upon the decision given by Bose, J. in AIR 1948 Nag 177. We shall therefore, first shortly discuss the reasons which have guided Bose, J. in mining to the above referred conclusion. This judgment is mainly based an the reasoning that the issue of notices is a fundamental part of the procedure of Courts in most cases and this aspect of the matter touches jurisdiction of the Court because as a general rule the power and authority to try a case at all does not arise until the other side has been afforded an opportunity of appearing and being heard. After making this observation, Bose, J. has proceeded to consider the provisions contained in Order 21, Rule 22 of the C. P. Code which deals with the initial issue of notice of an execution application. If a reference is made to the terminology employed by the legislature in Rule 22 of Order 21 it will be found that even that Rule uses the word 'shall' in connection with the notice which is required to be issued to the judgment-debtor, Rose, has construed this word shall as giving a mandate and since even Rule 66 of Order 21 uses the word 'shall' in connection with the notices which are required to be issued under sub-rule (2) of Rule 66 Bose, J. has come to the conclusion that event while construing Rule 66 (2) the word 'shall' should be construed as giving a mandate for issuing a notice to the judgment-debtor for the purpose of settling the terms of sale proclamation.
12. In view of this reasoning the first question which arises to be considered is whether jurisdiction of the Executing Court to order sale of an immovable property is dependent upon the issue of a notice contemplated by Rule 66 (2) of Order 21.
13. If we examine the scheme of Order 21 C. P. Code it becomes clear that after the execution proceedings are undertaken, the Executing Court gets jurisdiction to sell a particular property under the provisions of Rule 61 In case of final decree for sale of the mortgaged property, the jurisdiction to -order sale of the mortgaged property arises out of the terms of the decree passed under Order 34 Rule 5 C. P. Code. Thus, it is clear that the Executing Court gets jurisdiction to sell a particular property in execution of a decree passed by the Court either under Order 21 Rule 64 or under the terms of the decree which is sought to be executed. It is only after the Court passes the order of sale, either pursuant to Rule 64, or pursuant to the terms of the decree, that the question of issuing proclamation of sale by public auction under Rule 66 arises. This is even otherwise evident from the opening words of sub-rule (1) of Rule 66 viz. 'where any property is ordered to be sold by public auction'. What sub-rule (2) of R. 66 contemplates is merely a procedure to settle and draw up the details of the said sale proclamations. It is this procedure which contemplates notice to the judgment-debtor. Thus, the purpose of issuing notice to the judgment-debtor is obviously to ascertain the correct details regarding the properties proposed to be sold so that the purchaser at the auction could know the nature and the value of the property which is put to the auction and the judgment-debtor himself can point out to the Court the details which are necessary for preserving his interest during the course of the auction. Thus the purpose for which this notice is required to be issued is not to invest the Executing Court with any jurisdiction to proceed with the auction sale. - This jurisdiction is already there with the Executing Court either on account of the provisions contained in Rule 64 or on account of the terms of the decree which is sought to be executed. Therefore, in our opinion, it would not be correct to say that the Executing Court gets jurisdiction to sell a particular property only after the notice contemplated by sub-rule (2) is issued. On this point, therefore, we find ourselves unable to accept the views expressed by Bose, J. in AIR 1948 Nag 177 and by Mudholkar, J. in AIR 1958 Rom 278. It follows therefore, that the sale proceedings cannot be declared void, on the ground that these proceedings are rendered without jurisdiction for want of notice under Rule 66 (2) of Order 21.
14. However, this does not settle the Problem because the question which still requires to be considered is whether the want of such a notice renders the further proceedings of sale illegal or irregular. The answer to this question depends upon the consideration whether the provision as regards notice contained in sub-rule (2) of Rule 66 is mandatory or directory. Bose, J. and Mudholkar, J. have, in the above referred cases, construed this provision as mandatory in character. If this view is accepted then lack of notice under rule 66 (2) would render subsequent proceedings of sale illegal and hence void even though it is believed that the Court had jurisdiction to put the property to sale. But if this view is not accepted, then the want of notice under Rule 66 (2) would result in a material irregularity which would render the subsequent proceedings for sale voidable. For such voidable proceedings, remedy for the aggrieved party would be on a motion under Rule 90 of Order 21 to which the reference is already made above.
15. It is clear from the judgment of Bose, J. in AIR 1948 Nag 177 that he has considered the provisions regarding the notice under sub-rule (2) on an analogy of Rule 22 of Order 21 and the use of the word 'shall' in connection with the issuance of the notice.
16. Rule 22 of Order 21 provides that except where notice is dispensed with under the proviso attached to sub-rule (1), the Court executing the decree 'shall' issue a notice to the person against whom the execution is applied for, if the application for execution is made more than one year after the date of the decree or if it is made against the legal representatives of the Judgment-debtor. Privy Council has observed in Rughanathdas v. Sunderdas ILR 42 Cal 72 (AIR 1914 PC 129) construing this rule, that notice contemplated by it affords the very foundation of jurisdiction. This is in view of the fact that if an application for execution is made more than one year after the date of the decree the person against
whom the execution is applied for, must be served with a notice of the execution. But in our opinion rule 66 of Order 21 does not contain any similar provision, and as already noted above, the Executing Court derives its jurisdiction to sell a particular property from the provision of Rule 64 and not from the fact that the notices contemplated by sub-rule (2) of Rule 66 are issued and served. in our opinion, therefore, the analogy of Rule 22 Order 21 would not help us in construing Rule 66 (2) C. P. Code.
17. It is true that R. 66 (2) uses the word 'shall' with reference to the issuance of notice. But it is now well settled that the words 'shall' and 'may' do not necessarily imply that whenever they are used, the directions given through their use should always be construed as mandatory or directory. While construing these words, the Court has to find out the intention of the legislature as found from the subject-matter, its object, and its relation to the general object of the statute. If we apply these - tests, it becomes evident that the object of Rule 66 is to ascertain the details of the property which is ordered to be sold as accurately as possible so that the purchaser at the auction can get an accurate idea as to its valuation and nature and the judgment-debtor can get a fair price thereof. It is for the achievement of this object that rule 66 not only contemplates a notice to the judgment-debtor and the decree-holder, but also provides in sub-rule (4) that 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 of any such matters and require him to produce any document in his possession or power relating thereto. It is thus clear that the notice contemplated by sub-rule (2) serves the object of assisting the Court in ascertaining the correct details regarding the property. The rule about this notice is, therefore, merely procedural and its inadvertent infringement would not render such proceedings void. It should, however, be noted that a judgment-debtor has a right to be heard before the terms of the proclamation sale are settled. Therefore, unless he waives that right or acquiesces in the non-issuance o notice to him he is entitled to get the subsequent proceedings set aside under Rule 90 by showing that want of notice to him has resulted in substantial injury. In other words, subsequent proceedings are voidable for want of notice under sub-rule (2) of Rule 66 and therefore, it follows that want of notice under sub-rule (2) results in a material irregularity and not in an illegality. In this connection we may profitably refer to the test applied by the Supreme Court in Dhirendra Nath v. Sudhir Chandra : 6SCR1001 to determine whether a particular defect renders certain proceedings a nullity or whether they result in irregularity. In that case Section 35 of Bengal Money Lenders Act (X of 1940) provided that certain facts should be stated in the Proclamation issued under Order 21 Rule 66 and therefore, the question which arose before the Supreme Court was whether the sale held in contravention of the provisions of the said Section 35 was a nullity or not. While considering this question the Supreme Court has observed that the safest rule to determine what is an irregularity and what is nullity is to see whether the party can waive the objection; if he can waive it, it amounts to an irregularity; if be cannot, it is a nullity. Applying this test to the facts of the present case, the question is whether the Respondent judgment-debtor could or could not have waived the notice under sub-rule (2) of Rule 66. Obviously he could have waived that notice and even in the decision given by Bose, J. in Narayan Purshottam's case reported in AIR 1948 Nag 177, it has been observed that all that Rule 66 Order 21 requires is that the judgment debtor should have been noticed in one way or the other and therefore, if the judgment-debtor is noticed under Order 21 Rule 22 or appears at a previous stage, then it is not necessary to notice him again under Order 21 Rule 66. The learned Judge has further observed that it is enough that a date of which be has either constructive or actual notice be fixed for the drawing up and issue of the proclamation. It is thus clear that if the notice contemplated by Rule 66 (2) could be avoided by the Respondent Judgment-debtor the want of that notice would amount to merely an irregularity, redress against which can be availed of under Order 21 Rule 1O. In this connection Shri Parikh who appears on behalf of the Respondent relied upon the decision given by the Supreme Court in Gajadbar Prasad v. Bbakta Ratan : 1SCR372 . In that case the Supreme Court has held that mere mention by the execution court in the sale proclamation of the valuation of the properties sought to be attached as stated by the decree-bolder, without assigning any reason for the non-mention of the valuation as put by the judgment debtor was material irregularity when the judgment-debtor suffered substantial injury by the sale. We fail to understand bow this decision can be pressed into service for the proposition that want of notice contemplated by Rule 66 (2) to the judgment-debtor would result in an illegality which would vitiate the subsequent proceedings for sale.
18. We get further support for the view which we are taking from the provisions contained in R. 90 of 0. 21. We find that rule 90 is so worded that it completely covers the proceedings contemplated by Rule 66 of Order 21. As already observed, Rule 90 enables a person whose interest is affected by the sale of immovable property in execution of a decree, to apply to the Court to set aside the said sale on the ground of material irregularity or fraud 'in publishing or conducting' the said sale. Therefore, if in a particular case any irregularity is found in publishing a sale, the matter would be covered by Rule 90. The question, therefore, is whether want of notice under Rule 66 (2) to the judgment-debtor is an irregularity 'in publishing' the sale in court auction. The word 'publishing refers to what is done after an order for sale is made, but before the actual conduct of sale. As already noted above, in this case order to sell the mortgaged property in auction was made by the Court as early as 4-5-1967. The proclamations were issued under Order 21 Rule 66, thereafter on 6-5-1967. Proclamations of sale which are settled under Rule 66 Order 21 obviously constitute a step in publication of sale. This is quite evident not only from the prescribed form of proclamations to be issued under Rule 66, but also from the wordings of Rule 66 itself. In Kandaswami v. Narasimha Aiya : AIR1952Mad582 , a Division Bench of Madras High Court has held that word 'publishing' which appears in Rule 90, refers to what is done antecedent to the actual conduct of sale but subsequent to the order directing the sale. The same view is taken by a Full Bench of Andhra Pradesh High Court in the above referred decision reported in AIR 1957 Andh Pra 185 (FB). We are, therefore, of the opinion that the settlement of proclamations under 0. 21 R. 66 is a step in publishing the sale of the property which is sought to be auctioned. Mudholkar, J. has taken a different view on this point in his above referred decision given in Dada Narayan v. Jaichand (AIR 1958 Bom 278). But Miyabhai, J. has taken this view in the subsequent decision given by him in Sundarbai v. M. M. Gokhale : AIR1959Bom178 (Supra) as will be clear from his following observations:
'In my opinion, the moment any further proceedings are started by the Court after an order for sale under Order 21 rule 64 is made, the Court necessarily takes all those proceedings in order that the prospective sale may be proclaimed, and, in my opinion, a notice under Order 21 rule 66 to the judgment-debtor is an important step towards the preparation and the publication of the sale. .......... I have come to the conclusion that an issue of a notice under Order 21 Rule 66 is a step which is taken by the Court in publishing the sale, and, therefore, it is quite clear that if that notice has not come to be served upon the judgment-debtor, then, the irregularity must be considered to be one which has occurred in the Publication of the sale.'
In this connection we may point out that in an earlier decision of the Bombay High Court in Parashram Hanmanta Patil v. Balmukund Lachiram Marwadi (1908) ILR 32 Bom 572, it was held that irregularity resulting from non-issue of a notice to a party before proclamations are issued is anterior to the publishing or the conduct of the sale. But this decision would not apply to the facts of the present case because it was given under the provisions of the old Civil Procedure Code of 1882 which did not contain the provisions similar to the sub-rule (2) of Rule this being the position the irregularity which the learned judge of the Executing Court has committed in this case in not serving the judgment-debtor with any notice under Rule 66 (2) Order 21, is committed in publishing the sale and is, therefore, curable by invoking the provisions of Rule 90 of Order 21 provided the judgment debtor has suffered substantial injury.
19. What now remains to be considered is what is the effect of the above noted irregularity which is a material irregularity. If the matter is covered by Rule 90 of 0. 21 the judgment-debtor would succeed only if he could prove that as a result of this irregularity be has suffered substantial injury. In this case, the judgment-debtor contended by his application Ex. 10 that the property has not fetched proper price but this contention was given up by him. There was no other material produced by him to show that as a result of the want of notice under Rule 66 (2) he has suffered any substantial injury. Under that circumstances we hold that there are no grounds for setting aside the auction sale.
20. Shri Hathi, who appears on behalf of both the appellants contended that the learned District judge ought not to have set aside the sale without joining the purchaser as a party to this proceeding. Even if the matter was covered by Section 47 of the C. P. Code, we find that there is good deal of substance in this contention of Shri Hathi because even if the matter falls under Section 47 C. P. Code the purchaser at a sale in execution of a decree is a party to the proceedings (Vide explanation attached to Section 47). Under these Circumstances we are 266 of 1970 D/- 10-7-1974 (Cuj), Foll. of the opinion that the learned District judge
should have decided the matter only after joining the auction purchaser as a party to the proceedings.
In the result, we find that both these appeals should succeed. These appeals are allowed and the order passed by the learned Single fudge is set aside. The order of the Executing Court is restored. There shall be
no order as to costs of these appeals.
21. Appeals allowed.