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Nanda Kumar Pande Vs. Sourendra Nath Ghose and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1936Cal129,166Ind.Cas.452
AppellantNanda Kumar Pande
RespondentSourendra Nath Ghose and anr.
Cases ReferredJotindra Mohan Chaudhury v. Bridhi Deyee Bibi
Excerpt:
- .....regulation. the auction-purchaser having opposed his prayer the collector made a reference to the learned subordinate judge.2. it is admitted that the deposit made by the defaulting patnidar has fallen short by a certain amount, namely the amount due on account of interest from the date of the sale to the date of deposit. having regard to my decision in the case of jotindra mohan chaudhury v. bridhi deyee bibi (1935) 39 c w n 516 which has since been approved by a division bench in civil revision no. 934 of 1934 decided on 24th may 1935, it is conceded by the opposite party 1, that the above mentioned shortage in the amount deposited would ordinarily be fatal to his prayer for setting aside the sale, but it is contended on his behalf that as the zamindar has consented to the sale being.....
Judgment:
ORDER

R.C. Mitter, J.

1. The petitioner before me is the auction-purchaser of a patni sold under the provisions of Regn. 8 of 1819. The only question involved in this rule is whether the learned Subordinate Judge, to whom a reference was made by the Collector under Section 14-A, Clause 5, of the Patni Regulation, was justified in setting aside the sale under the provisions of Section 14-A of the said regulation. The opposite party 1 who was the patnidar defaulted in paying the patni rent for the year 1341 B.S. The Mukherjees who are the zamindars, through their manager, their estate being under the charge of the Court of Wards, applied to the Collector for sale under the Regulation on 16th April 1935. In the said application the claim made on behalf of the zamindars was laid at Rs. 527-15-5 gds. On 15th May 1935 the Collector held the sale and at that sale the petitioner purchased the patni. On 13th June 1935 the defaulting patnidar deposited the sum of Rs. 560-15-5 gds. in the Collectorate for enabling him to set aside the sale under the provisions of Section 14-A of the said Regulation. The auction-purchaser having opposed his prayer the Collector made a reference to the learned Subordinate Judge.

2. It is admitted that the deposit made by the defaulting patnidar has fallen short by a certain amount, namely the amount due on account of interest from the date of the sale to the date of deposit. Having regard to my decision in the case of Jotindra Mohan Chaudhury v. Bridhi Deyee Bibi (1935) 39 C W N 516 which has since been approved by a Division Bench in Civil Revision No. 934 of 1934 decided on 24th May 1935, it is conceded by the opposite party 1, that the above mentioned shortage in the amount deposited would ordinarily be fatal to his prayer for setting aside the sale, but it is contended on his behalf that as the zamindar has consented to the sale being set aside, it should be held otherwise. To be more precise the argument is that the deposit required under Clause (b) of Section 14-A being intended for the benefit of the zamindar it is open to the zamindar to waive the requirements of the said clause, and as in fact he has waived the same by giving his consent to the sale being set aside, the Court should ignore the deficiency in the amount deposited. On the application which was made on 13th June 1935 by the defaulting patnidar to the Collector for setting aside an authorized agent of the zamindars made an endorsement to the following effect: 'I have no objection to the sale being set aside. D.N. Roy Chaudhury, R.A. for zamindars.'

3. The learned Subordinate Judge distinguished Jotindra Mohan Chaudhury v. Bridhi Deyee Bibi (1935) 39 C W N 516, on the ground that the zamindar had not in that case 'consented in writing' to the sale being set aside. No doubt in that case the zamindar had not consented in writing, but in this Court his advocate had in fact said that he had no objection to the sale being set aside. The learned Subordinate Judge has dealt with the case before him in the following way. I quote the words:

It is true that the interest up to date of deposit (from the date of sale) has not been deposited. But this amount was required to be paid for payment to the zamindar. If the zamindar says that he got the amount either expressly or impliedly I think that the non payment of the amount in Court would not matter. If it had been deposited, the zamindar would have taken it. If the zamindar says that he has got it that is enough compliance with the provisions of Section 14-A of the Patni Regulation. The zamindar by giving his consent to the sale being set aside said in substance that all payments required to be made for setting aside of the sale have been made.

4. This is the ratio on which the learned Subordinate Judge purports to make his order by which he has set aside the sale. I do not quite follow the learned Subordinate Judge. Whether the receipt of payment out of Court by the zamindar from the defaulting patnidar within thirty days of the sale of any amount covered by Clause (b), Section 14-A would dispense with the deposit of the same in the Collectorate is a question which need not be considered in this case. All I say for the present is that for the consideration of the said question the marked difference between that clause and Sub-section 1, Clause (b), Order 21, Rule 89, Civil P. C., will have to be considered. But in this case before me there is no allegation or proof that any amount was paid by the defaulting patnidar to the zamindar amicably i.e., out of Court, within thirty days of the sale. In such circumstances and where the auction-purchaser is a stranger, even if the zamindar were to say expressly that 'all payments required to be made for the setting aside of the sale have been made' the Court or the Collector, as the case may be, would not be right in setting aside the sale, if in fact the money deposited in the Collectorate or the money paid to the zamindar amicably plus the money deposited, fall short of the amounts required to be put in under Section 14-A. I am here assuming that payment to the zamindar amicably of the money required to be deposited under Clause (b), Section 14-A is a sufficient compliance. The auction-purchaser had acquired a valuable right by his purchase and in my judgment the views of the zamindar on the question of law or the question of rights of the auction-purchaser--it amounts to that-ought not to influence the decision of the Court in favour of the defaulting patnidar.

5. This leads me to the question of waiver raised before me. As a general rule it is no doubt true that a person pan waive a benefit intended solely for him, and it would make no difference whether such benefit is conferred on him by contract or by statute. It is equally well settled that if such a provision made in a statute though for his benefit, is also intended for the benefit of or protection of the interest of others or is based on public policy, there can be no scope for the application of the principle of waiver. By a sale of a patni under the regulation the auction-purchaser acquires very valuable rights. Before the introduction of Section 14-A in the Regulation by the recent amendment the rights acquired by him could not have been challenged except in the manner provided for in Section 14. Section 14-A by providing another mode for setting aside a sale has to a certain extent encroached upon the rights which he enjoyed before. That section can be looked at from another point of view also. The limitations prescribed in that section, e.g., the time for deposit and the amount also, are intended for the protection of his interest. In this view of the matter I do hold that there is no scope for the application of the principle of waiver. On the facts also I hold that no case of waiver by the zemindar has been established. The zamindar's authorized agent simply stated that the zemindars had no objection to the sale being set aside. The zemindars have not admittedly received payment of the interest on the arrears from the date of sale to the date of deposit, and there is nothing on the record to show that they have given up their claim to such interest.

6. The rule is accordingly made absolute, the order of the learned Subordinate Judge is set aside and the sale confirmed. As the case is a hard one for opposite party 1, I direct the parties to bear their respective costs throughout.


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