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Jatindra Mohan Sarkar Vs. Mahipal Nayek and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtKolkata
Decided On
Reported inAIR1948Cal203
AppellantJatindra Mohan Sarkar
RespondentMahipal Nayek and ors.
Cases ReferredGirish Chandra Das v. Shibaprasad Jana
Excerpt:
- .....the sale has been attacked was filed as late as 18th june 1943. the challenged sale was held on a sale proclamation issued on 21st august 1940, that is to say ten days before the bengal moneylenders act 1940, had come into operation. by that proclamation the sale was fixed for 12th november 1940.2. soon after the bengal honey-lenders act had come into force the judgment-debtor made an application to the subordinate judge under section 36 of that act for relief. in that application he prayed inter alia for reopening the decrees passed against him. during the pendency of that miscellaneous case started on this application he applied for postponement of the sale from time to time, at first unconditionally waiving publication of fresh sale proclamation in respect of the sale adjourned from.....
Judgment:

R.C. Mitter, J.

1. In execution of a mortgage-decree the properties mortgaged by the appellant were sold on 13th February 1939. Some of them were purchased by the decree-holder and the rest by strangera. The price fetched at that sale, however, did not cover the decretal amount with the result that the mortgagee obtained on 24th April 1940 a personal decree for Rs. 7198 under Order 34, Rule 6, Civil P.C. In execution of this decree eighteen items of the mortgagor's other properties were ultimately put up to sale on 17th January 1941 by the Subordinate Judge who had passed the personal decree in the mortgage suit. One lot was not sold, five were purchased by the decree-holder respondent and the remaining lots were purchased by the other respondents in the appeal who are strangers. The sale was confirmed on 30th January 1942. The legality of the sale of the seventeen lots sold on 17th January 1941 in execution of the said personal decree is the question to be decided in this appeal. The application of the judgment debtor in which the sale has been attacked was filed as late as 18th June 1943. The challenged sale was held on a sale proclamation issued on 21st August 1940, that is to say ten days before the Bengal Moneylenders Act 1940, had come into operation. By that proclamation the sale was fixed for 12th November 1940.

2. Soon after the Bengal Honey-lenders Act had come into force the judgment-debtor made an application to the Subordinate Judge under Section 36 of that Act for relief. In that application he prayed inter alia for reopening the decrees passed against him. During the pendency of that miscellaneous case started on this application he applied for postponement of the sale from time to time, at first unconditionally waiving publication of fresh sale proclamation in respect of the sale adjourned from 12th November to 29th November and from 29th November to 16th December 1940. On 16th December 1940 he again applied for postponement of the sale waiving the publication of a fresh sale proclamation but this time subject to the condition that waiver would be valid only if he did not get relief in the proceedings started by him under the Bengal Money-lenders Act. His prayer was allowed and the sale was postponed to 14th January 1941.

3. His application under Section 36, Moneylenders Act, was dismissed by the Subordinate Judge on 4th January 1941. On the very date fixed for the sale the judgment-debtor applied for adjournment of the sale on the ground that he intended to appeal to this Court against the order rejecting his application for relief under the Money-lenders Act; and to bring an order from the appellate Court staying the sale. This application for postponement of the sale was opposed at once by the decree-holder. It was, however, not disposed of on 14th January 1941 and was ordered to be put up for consideration to the following day. The Subordinate Judge at the same time postponed the sale to the next day. On the next day the 15th January, the judgment-debtor's application for postponement of the sale was refused and the properties were put up to sale on the next day, that is to say, on 16th January 1941 on the basis of the sale proclamamation which had been issued on 21st August 1940. They were actually sold on 17th January 1941.

4. It is not necessary to recite the course of the proceedings under Section 36, Bengal Money-lenders Act. Ultimately it terminated substantially in favour of the judgment debtor on 30th October 1942. The judgment-debtor had on 12th February 1941, that is within 30 days of the sale, filed an application for reversal of the sale under Order 21, Rule 90 of the Code, but that application was allowed by him to be dismissed for default on 18th July 1941. The sale was confirmed, as we have already said, by the executing Court on 30th January 1942. On 18th June 1943 the judgment-debtor filed another application (which is the subject matter of the appeal before us) for reversal of the sale heading his application as one made under Section 47 and Order 21, Rule 90 of the Code. The grounds in support of his application as pressed before the Subordinate Judge and also before us are as follows: (1) that waiver of fresh sale proclamation was not effective, inasmuch as his application for relief under the Money-lenders Act had succeeded, and so the sale could not be held on 16th January 1941 on the sale proclamation issued on 2lst August 1940, which had fixed the sale for 12th November 1940; (2) that in any event, the sale could not be held on 16th January 1941, on the basis of his unconditional waiver as made in his petition of 29th November 1940, inasmuch as the bidding commenced on a date which was beyond a month from 16th December 1940; and (3) that in any event the sale was a nullity as the sale proclamation on the basis of which the sale was held was not in terms of Section 35, Bengal Money-lenders Act.

5. On the facts which we have recited it is possible to hold that the waiver on his part as to the publication of a fresh sale proclamation as made is his petition filed on 16th December 1940, was not effective. The waiver was a conditional one, and the condition has not been fulfilled as his application under the Money-lenders Act ultimately succeeded, though not fully. In view of his conditional waiver regarding the publication of a fresh sale proclamation as made on 29th November 1940, the sale could be held on 15th December 1940, on the basis of the proclamation issued on 21st August 1940, and the Court could postpone the sale without publishing another sale proclamation to any date which was not beyond a month from 16th December 1940. We need not decide the question whether 16th January 1941, when the sale commenced would be beyond a month from 16th December 1940, or just within the month. It would be the one or the other according as in making the computation the date, 16th December is taken into account or excluded. In our judgment, however, non-issue of a sale proclamation when the law requires the publication of a fresh sale proclamation stands on the same footing as the non-service or suppression of service of a sale proclamation in the matter of the reversal of a sale. They would be material irregularities and would not affect the jurisdiction of the executing Court to hold the sale. The adjournment of a sale beyond a month without publishing a new sale proclamation would stand on the same footing. The first two grounds urged by the judgment-debtor can only be the subject-matter of an application under Order 21, Rule 90 of the Code and so cannot be the subject-matter of an objection under Section 47 of the Code. This view of ours is supported by the decisions in Bagala Chandra v. Rameswara Mondal ('91) 18 Cal. 496 Satish Chandra Rai v. Thomas ('85) 11 Cal. 658 at p. 660 and many other cases to be found noted in annotated editions of the Civil Procedure Code noticed under Order 21, Rule 69. The appellant before us, cannot urge the first two grounds for attacking the sale as his application was beyond the period of limitation prescribed for an application under Order 21, Rule 90 of the Code.

6. It has been laid down by the Federal Court; in Shyama Kanta Lal v. Ram Bhajan Singh that non-compliance with Sections 16 and 17, Bihar Moneylenders Act, 1938, which are pari materia with Section 35, Bengal Money-lenders Act, 1940, does not concern a rule of mere procedure, but affects a valuable right of the judgment-debtor and that right which the judgment debtor loses by reason of the non-compliance with the provisions of those two sections is different from what is available to him under Order 21, Rule 90, Civil P.C. The third ground on which the sale has been attacked by the judgment-debtor can only be the subject-matter of an objection by him under Section 47 of the Code. This ground of attack cannot therefore be disposed of on the ground that his application was made not within 30 days of the sale but about two and half years thereafter. The material question, however, is whether Section 35, Bengal Money-lenders Act, applies to the case before us.

7. The sale was held on the basis of the proclamation, issued on 21st August 1940. The Bengal Money-lenders Act, 1940, was not in force then. But before the sale date fixed in the said proclamation the said Act had came into operation. The contention of the judgment-debtor is that as soon as the said Act came into force the executing Court ought to have recalled the said sale proclamation and to have issued a fresh sale proclamation in compliance with the provisions of Section 35. A similar contention was overruled by a Division Bench in Girish Chandra Das v. Shibaprasad Jana : AIR1942Cal472 , where it was held that Section 35 of that Act does not apply to a case where a valid sale proclamation had been issued before that Act had come into force. The reason in support of that conclusion is stated thus:

The section (Section 35) nowhere says that a sale proclamation validly issued before the Act would cease to have effect after the Act, nor does it say that such sale proclamation should be amended in accordance with its provisions. It merely directs what should be done when a sale proclamation is about to be drawn up and at a sale held pursuant to such proclamation.

8. Section 35 of the Act does not enunciate a mere rule of procedure. It creates a valuable right in the debtor, but at the same time the right so created takes away a valuable right which the decree-holder, who had obtained a decree on a loan, had before the said enactment. He had under the general law the right to choose the properties of the judgment-debtor which in his opinion would have afforded him the best and expeditious means of realising his decree. He could have asked for sale of as many of the properties of the judgment-debtor as he wished to choose. In the case of a decree on a secured loan he could have asked for sale of all the secured properties even if their total value far exceeded the decretal amount, and the Court would have been bound to include all of them in the proclamation of sale. Where the decree was on an unsecured loan the choice of the decree-holder in the matter of the inclusion of the judgment-debtor's properties could not also have been limited by the executing Court. Moreover in view of the last sentence of para. 1 of Section 35, Money-lenders' Act, and the proviso, there cannot be any doubt that that section has encroached upon the rights which the decree-holder had before. It is thus a case where the section has taken away or affected a substantive right of the decree-holders. The section can therefore have prospective operation only Jogodanund Singh v. Amritlal Sarkar ('95) 22 Cal. 767 (F.B.) as the Legislature has not given it retrospective operation either by express words or by necessary implication. On this ground we respectfully agree with conclusions of the Division Bench in Girish Chandra Das v. Shibaprasad Jana : AIR1942Cal472 as embodied in the passage which we have quoted above. The third contention of the judgment-debtor appellant is also overruled. The result is that this appeal is dismissed with costs, F.M.A. No. 190 of 1944.

9. In this appeal the question is whether possession of certain items of property which had been purchased by strangers at the said sale held on 17th January 1941, should be restored to the judgment-debtor on the ground that the said purchasers had obtained possession through the Court, at a time when the Court had ordered stay of delivery of possession. They got delivery of possession after the sale had been confirmed. As we have held the sale to be a good one those purchasers had acquired good title relating back to the date of the sale. They had thus a right to possess the property on the date they took possession. They cannot be deprived of their possession. The judgment-debtor may have had other remedies but their claim for restoration of possession cannot be allowed. This appeal accordingly fails. It is dismissed with costs.

Sharpe, J.

10. I agree.


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