G.N. Das, J.
1. This appeal is at the instance of the defendant and is directed against the judgment and decree dated 29th March 1946 passed by Mr. P. P. I. Vaidyanathan, learned District Judge, Malda, affirming on appeal the judgment and decree dated 17th November 1944 passed by Mr. S. C Chakravarty, learned Subordinate Judge, Malda decreeing the plaintiff's suit.
2. The plaintiff's case was that the disputed property appertained to 2 jamas held by the defendants under Sadek Reja. The latter instituted a suit for rent and recovered a decree. In execution of the decree, the property was put up to sale and was purchased by Charu Chandra Sarkar, pleader of the decree-holder on 26th March 1940, The judgment-debtor's application for setting aside the sale failed. The auction purchaser Charu Chandra Sarkar took possession through Court on 31th December 1940 and later sold the property to the plaintiff on 16th December 1942, The plaintiff having failed to get possession, instituted the present suit for declaration of title and for possession.
3. Defendant 2 who contested the suit, pleaded that the plaintiff's vendor did not acquire any title by his auction purchase in view of the provisions of Order 21, Rule 73, Civil P. C
4. Both the Courts below overruled the defence and decreed the plaintiff's suit. Defendant 2 has preferred this appeal.
5. Mr. Bakshi appearing on his behalf, has reiterated the ground taken in the Courts below and has contended that the prohibition contained in Order 21, Rule 73, Civil P. C. hereinafter Called the Code, applies to a pleader of the decree-holder and makes the sale a nullity.
6. I may point out at the outset that no case of fraud on the part of the decree-holder has been proved in this case.
7. The validity of the contention depends on the interpretation of Order 21, Rule 73 of the Code, which runs as follows :
'No officer or other person having any duty to perform in connection with any sale, shall, either directly or indirectly, bid for, acquire, or attempt to acquire any interest in the property sold.'
8. The corresponding Section 292 of the Code of 1882 did not contain the words 'other person.'
9. The old Section 292 was construed in the case of Alagiri Sami v. Ramnathan, 10 Mad. 111, to exclude a Vakil, on the ground that a Vakil cannot be regarded as an officer having any duty to perform in connection with the sale.
10. As a legal practitioner is an officer of the Court only in a limited sense the view taken in the Madras case may be supported on that ground.
11. The further question viz,, whether a pleader has any duty to perform in connection with the sale, has to be carefully considered bearing in mind the principle underlying the section and the intention of the legislation.
12. In the Transfer of Property Act which was also enacted in 1882, we find in Section 136, an express prohibition as regards legal practitioners buying or trafficking in actionable claims.
13. The principle underlying both the sections is that persons contemplated therein should not be even exposed to the suspicion that in the discharge of their duties, their conduct might be influenced by any personal consideration.
14. In construing any Act of the Legislature the verbal construction of the particular section in question, if it be plain and simple, must govern the Court in arriving at its conclusion. If there be any doubt or difficulty in the wording of the particular section in question an enquiry is permissible into the history of the enactment and any supposed defect in the former legislation on the subject which it wanted to cure : Queen v. Bishop of London, (1889) 24 Q. B. D. 213 at pp. 224, 225.
15. I now proceed to construe the section bearing in mind the principle underlying the section and the above rule of construction.
16. The main question is whether a pleader is a 'person who has any duty to perform in connection with the sale'. These words were construed in Shiam Lal v. Girraj Kishore : AIR1927All76 , to be 'intended to prohibit all those parsons who have anything to do with the machinery of the sale or having any interest in the result of the sale.' This view is consistent with the collocation of the rules preceding Rule 73.
17. If this be the correct view of the relevant words in Rule 73, it is difficult to say that the duty of the pleader of the decree-holder ends with the obtaining of the order for sale, as was supposed in In re a Pleader, I. L. R. (1946) Mad. 521 : (A. I. R (33) 1946 Mad. 245: 47 Cr. L. J. 708 F. B.).
18. Even after the order for sale is made, the pleader has to see that the sale proclamations is duly served, that the sale is held on a day when the bids may be favourable to the decree-holder. He has to apply for and obtain leave to bid on behalf of the decree-holder. He may pray for a resale under certain circumstances. In cases under chap, XIV, Ben. Ten. Act, he has to exercise the option given to the decree-holder under Section 165 of the Act. He is therefore not wholly unconnected with the machinery of the sale.
19. It has been suggested that the words 'any person who has any duty to perform in connection with the sale' refer to the persons entrusted with the holding of the sale, e. g., an auctioneer, bailiff, etc. This would have the effect of narrowing down the scope of the rule and would be inconsistent with the purpose of the rule and would not prevent the mischief the rule was intended to guard against. The decree-holder has been put under a limited ban from bidding at sale under Rule 72. If his pleader is left unrestricted, it would leave the door wide open for evasion of Rule 72. Moreover, the decree-holder's pleader is in a fiduciary position towards the decree, holder, and, the principles enunciated in Nuqent v. Nugent, (1908) 1 Ch. 546: (77 L. J. Ch. 271) which was applied by this Court in Jiteswari Dasi v. Sudha Krishna : AIR1932Cal672 , viz., that a person in a fiduciary position having special means of knowledge actual or probable ought not to be allowed to buy or bid for the property without the leave of the Court and that nobody ought to be allowed to get into a position where his interest conflicts with his duty, should be kept in view in construing the section.
20. The decree-holder's pleader settles the terms of the sale-proclamation and conducts the entire litigation on behalf of the decree-holder, he has special means of knowledge. He is in a position of confidence and should not allow himself to be placed in a position where his personal interest may conflict with his duty towards his client.
21. In my opinion, a purchase by a pleader of the decree-holder is hit by Order 21, Rule 73 of the Code.
22. Coming to the decisions, we have a decision in Kamakhya Dutt Ram v. Shyam Lal A. I. R. (16) 1929 oudh 235: (4 Luck. 635), where the purchase by a decree-holder's pleader was upheld. No reasons are given for the conclusion. On the other hand, the decision in Sunderbai v. Bapuna , seems to prefer the opposite view. The decision in Shiam Lal v. Girraj Kishore : AIR1927All76 , did not decide the position of a pleader. The decision in In re a Pleader, I.l.r. (1946) Mad. 521 : (A. I. R. (33) 1946 Mad. 245 : 47 Cr. L. J. 708 F. B.), following the earlier case in Alagirisami v. Ramanathan, 10 Mad. 111, takes a contrary view. The judicial decisions are thus not uniform.
23. In Subharayudu v. Kottayya, 15 Mad. 389, the decree-holder successfully challenged a secret purchase by his pleader. The point now under consideration did not require a decision. Their Lordships quote with approval the following passage from Greenlaw v. King, (1840)3 Beav. 49: (10 L. J. Ch. 129):
'The question is not whether there was fraud or no fraud, but whether the Court will permit a person standing in the fiduciary and confidential situation in which B was, to make himself an interested party in the very transaction which he as trustee was bound most vigilantly to superintend.'
25. The case of Nundeeput Mahta v. Alexander Shaw, 13 W. R. 209 (at p. 214) (S.B.) on which Mr. Bakshi relied was a case of a joint purchase by the decree-holder and a pleader of the judgment-debtor under suspicious circumstances, and did not touch the present question. The case of Aghorenath Chakravarty v. Bam Chandra Chakravarty, 23 Cal. 805, was one where a purchase by a pleader for the judgment-debtor was held to enure for the benefit of the judgment-debtor on the principle that 'it would be acting in violation of all rules of equity and good conscience if we were to hold that the defendant is entitled to maintain his purchase to the detriment of the plaintiff.'
The above cases illustrate the anxiety of the Courts to maintain the purity of the sales in auction. On similar grounds Section 66 of the Code forbids benami purchases at court sales.
26. The effect of the above decisions supports the view taken by me that a purchase at the auction sale by a pleader of any of the parties is liable to be set aside, as being in contravention of Order 21, Rule 73 of the Code.
27. This leads us to consider whether an auction purchase which is hit by Order 21 Rule 78 makes the sale void or voidable.
27a. Mr. Bakshi contends that the use of word shall makes the prohibition mandatory and renders the sale a nullity.
28. This broad contention is supported neither by principle nor by authority. It cannot be affirmed as a proposition of universal application that non-compliance with every imperative provision of law renders the proceedings a nullity. The question depends on the nature, scope and object of the particular provision which has been violated. In Holmes v. Russell, (1841) 9 Dowl. 487, which was quoted with approval in Ashutosh Sikdar v, Beharilal Kirtania, 35 Cal. 61 at p. 72 : (6 C. L. J. 320 F. B.) Coleridge J., observed as follows:
'It is difficult sometimes to distinguish between an irregularity and a nullity, but the safest rule to determine what is an irregularity and what is a nullity is to see whether the party can waive the objection; if he can waive it, it amounts to an irregularity, if he cannot, it is a nullity.'
29. The rule now in question is intended for the benefit of the decree-holder and the judgment-debtor and may be waived by them without any infringement of public right or policy.
30. Judged in the light of the above principles, the purchase by a pleader of the decree, holder is not a nullity but is merely voidable.
31. This conclusion is also supported by the fact that a purchase by the decree-holder whose position cannot be worse than that of his pleader, is only voidable in the absence of a leave of the Court under Rule 72.
32. In this view, the purchase by Charu Chandra Sarkar which was unsuccessfully challenged by the judgment-debtor, is binding on the defendant and the plaintiff has acquired a good title by his purchase from Charu Chandra Sarkar.
33. The only contention raised in the appeal fails. The appeal must therefore be dismissed with costs.