1. This is an appeal by the plaintiffs in a suit for recovery of arrears of rent. The defendants denied the relationship of landlord and tenant during the years in claim. They urged in substance that the title of the plaintiffs had been extinguished as the result of a sale held in execution of a decree passed in a suit instituted under Section 148A of the Bengal Tenancy Act.
2. The Court of first instance gave effect to this contention and dismissed the suit. Upon appeal the decree of the primary Court has been affirmed by the District Judge. On second appeal it has been argued that the question of title of the plaintiffs in res judicata in view of a decree made on the 29th April 1915 in a previous suit between the parties. This view has been rejected by both the Courts below. It is not necessary to examine in detail the scope of the earlier suit because we have arrived at the conclusion that the question now in controversy was not directly and substantially in issue in the previous litigation and was not finally decided therein. Consequently we have to consider the effect of the sale held on the 11th September 1913 in execution of a decree for arrears of rent in a suit instituted under Section 148A of the Bengal Tenancy Act.
3. It is not disputed that the interest claimed by the plaintiffs was originally held under two landlords, Dighapatia and Tagore. On the 13th July 1897 one Amarendra Nath Ghose purchased the tenancy at a sale held in execution of a decree obtained by Dighapatia against Panch Couri Ghose who was the recorded tenant. The right, title and interest of Panch Couri Ghose was subsequently purchased by Asutosh Ghose, the pro forma defendant in the present suit, and Arunadoy Ghose, the predecessor in interest of the plaintiffs at a sale held in execution of a money decree. The names of Asutosh Ghose and Arunadoy Ghose do not appear, however, to have been recorded in the office of the landlord. The consequence was that Dighapatia brought a suit-against one Behary Lal Roy who had purchased the tenancy at a sale in execution of a decree for arrears of rent on the 9th September 1902. This suit was instituted under Section 148A of the Bengal Tenancy Act. A decree was obtained in due course in the presence of Tagore who was made a party defendant. No notice, however, was served upon Tagore under Section 158B of the Bengal Tenancy Act and yet the decree was executed. At the sale which followed Kishori Mohan Srimany under whom the contesting defendants claim, became the purchaser on the 11th September 1913. We are invited to hold that the effect of this purchase by Kishori Mohan Srimany was to extinguish the interest acquired, by Asutosh Ghose and Arunadoy Ghose on the 10th March 1902. The plaintiffs contended in the Courts below that the decree obtained by Dighapatia in the suit instituted under Section 148A could not operate as a decree for the entire rent according to the provisions of the Bengal Tenancy Act, inasmuch as the notice contemplated by Section 158B was not served on Tagore. This contention has been negatived by the Courts below. The point consequently reduces to this what is the effect of the omission of the co-sharer landlord who has instituted a suit under Section 148A of the Bengal Tenancy Act to serve the notice contemplated by Sub-section 2 of Section 158B. The appellants contend that the result is to destroy the character of the decree as a decree for arrears of rent and to make it operative only as a decree for money so that at the sale which follows the right, title and interest of the person named as the judgment-debtor alone passes. In support of this view reliance has been placed upon the cases of Nunda Lal Choudhury v. Kala Chand Chowdhury 8 Ind. Cas. 50 : 15 C.W.N. 820, Sarip Hochan v. Tilattama Debi 43 Ind. Cas. 3 and Ahamad Biswas v. Benoy Bhusan Gupta. 53 Ind. Cas. 515 : 23 C W.N. 931 : 30 C.L.J. 135.
4. To determine the question raised before us it is necessary to investigate the scope and object of Sub-section 2 of Section 158B. That sub-section is in these terms. When one or more co-sharer landlords having obtained a decree in a suit framed under Sub-section (1) or under Section 148A 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 co-sharers. It will be observed that the section does not in express terms state the result of the failure to comply with this direction. The cases of Sarip Hochan v. Tilattama Debi 43 Ind. Cas. 3 and Ahamad Biswas v. Benoy Bhusan Gupta 53 Ind. Cas. 515 : 23 C W.N. 931 : 30 C.L.J. 135 laid down that the provisions contained in Sub-section 2 of Section 158B is mandatory and not directory and the failure of the Court to serve the notice rendered the sale invalid. In support of this view, reliance was placed upon the decision of the Judicial Committee in Raghunath Das v. Sundar Das Khetri 24 Ind. Cas. 304 : 42 C. 72 : 41 I.A. 251 : 18 C.W.N. 1058 : 1 L.W. 567 : 27 M.L.J. 150 : 16 M.L.T. 353; (1914) M.W.N. 747 : 16 Bom. L.R. 814 : 20 C.L.J. 555 : 13 A.L.J. 154 (P.C.) which turned on the true construction of Section 248, Civil Procedure Code of 1882, now replaced by Order XXI, r.22 of the Code of 1908. It must be remembered in this connection that the validity of the sale in the two cases mentioned was challenged by the co-sharer concerned and it may be conceded that the co-sharer who has not received the notice required to be served under Sub-section 2 of Section 158B is entitled to contest the legality of the sale on that ground. In the case before us the legality of the sale has not been questioned by the co-sharer. On the other hand, as pointed out by the District Judge, that co-sharer has adopted the sale, withdrawn his share of the purchase-money and granted mutation of name to the Purchaser. It may consequently be inferred that he knew of the sale and acquiesced therein. Can it be maintained, then, in such circumstances, that the sale was either a nullity or a sale inoperative as a sale under the Bengal Tenancy Act. The answer depends upon the scope and purpose of Section 158B.
5. It was pointed out in the case of Ashutosh Sikdar v. Behari Lal Kirtania 33 C. 61 : 11C.W.N. 1011 : 6 C.L.J. 320 (F.B.), that a sale held contrary to legislative enactment is not necessarily a sale absolutely without jurisdiction. It cannot be maintained on principle that because a sale has been held in contravention of a statutory Provision, it must, irrespective of the nature and purposes of the provisions, be deemed to be null and void. Reference may be made to five decisions of the Judicial Committee in illustration of this principle. The cases of Tasadduk Rasul Khan v. Ahmad Husain 21 C. 66 : 20 I.A. 176 : 17 Ind. Jur. 534 : 6 Sar. P.C.J. 324; Rafique and Jackson's P.C. No. 131 : 10 Ind. Dec. (N.S.) 676 (P.C.) (where a sale was held in violation of the provisions of Section 290, Civil Procedure Code), Gobind Lal Roy v. Ramjanam Misser 21 C. 70 : 20 I.A. 165 : 17 Ind. Jur. 536 : 6 Sar. P.C.J. 356 : 10 Ind. Dec. (N.S.) 679 (P. C) (where a sale for arrears of revenue was held in contravention of the provisions of Sections 5 and 17 of Act XI of 1859) and Malkarjun v. Narhari 25 B. 337 : 5 C.W.N. 10 : 2 Bom. L.R. 927 : 27 I.A. 216 : 10 M.L.J. 368 : 7 Sar. P.C.J. 739 (P.C.), (where a sale was held contrary to the provisions of Section 248 of the Code) amply show that there may be cases where the violation of an express provision of a Statute may not nullify the proceedings. On the other hand, the cases of Nusserwanjee Pestonjee v. Meer Mynoodeen Khan 6 M.I.A. 134 : 19 E.R. 50, (where an arbitration proceeding was carried on contrary to the provisions of the Bombay Regulation VII of 1827) and Subrahmania Ayyar v. Emperor 25 M. 61 : 11 M.L.J. 233 : 3 Bom. L.R. 540 : 28 I.A. 257 : 5 C.W.N. 866 : 2 Weir 271 : 8 Sar. P.C.J. 160 (P. C) (where a trial was held in contravention of the rule of joinder of charges embodied in Section 234 of the Criminal Procedure Code) are instances where failure to comply with the provisions of a Statute completely vitiated the proceedings. The only rule that may be adopted is that when the provisions of a Statute have been contravened, if a question arises as to how far the proceedings are affected by such contravention the matter must be determined with regard to the nature, scope and object of the particular provision which has been violated. No hard and fast line can be drawn between a nullity and an irregularity. But this much is clear that an irregularity is a deviation from a rule of law which does not take away the foundation or authority for the proceeding or apply to its whole operation, whereas a nullity is a proceeding that is taken without any foundation for it or is so essentially defective as to be of no avail or effect whatever, or is void and incapable of being validated. One test is well-established and is often useful; as was observed by Coleridge, J. in Holmes v. Russell 9 Dow. 28 (?) '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.'
6. Now if the provision has been enacted on grounds of public policy, an individual cannot be permitted to waive it. On the other hand if the provision has been enacted for the benefit of an individual he is entitled to waive it. Tested from this point of view, what is the obvious purpose of Section 158 B, Sub-section 2. The object which the Legislature had in view was to protect the co-sharer landlord. The sale in execution of the decree made in the suit framed under Sub-section (1) of Section 158 B or under Section 148A has the effect of a sale under the provisions of the Bengal Tenancy Act; in other words, the tenure or holding in the hands of the purchaser can no longer be pursued by the co-sharer landlord for the realization of his dues, if any. The co-sharer landlord who has been made a party to the suit is restricted to the sale proceeds for the satisfaction of his dues. It is consequently necessary for his protection that he should have notice of the execution proceedings in time to ensure their legality or regularity. From this point of view, it is open to the co-sharer landlord to waive the benefit of Sub-section 2 of Section 158B. This is precisely what has happened in this case. Here the co-sharer landlord was satisfied with the regularity of the execution proceedings. He withdrew the money which was in Court in satisfaction of his dues. In such circumstances, it is impossible for us to hold that the omission to serve upon the co-sharer landlord the notice contemplated by Sub-section 2 of Section 158B either nullified the sale or altered its character to that of a sale held in execution of a money decree. The conclusion follows that the Courts below have correctly held that the purchase by Kishori Mohan Srimany on the 11th September 1913 at the sale held in execution of the decree obtained by Deghapatia was to extinguish the interest of the plaintiffs, and the relationship of landlord and tenant was not in existence between the parties to this suit during the years in claim.
7. The result is that this appeal is dismissed. Nos. 2249, 2252 and 2280 of 1920.
8. In the view we take it is not necessary to consider whether these appeals are or are not competent. They are all dismissed.
9. Costs will be allowed in each of the appeals where the respondent has entered appearance.