B.K. Mukherjea, J.
1. This appeal is on behalf of the defendants and it arises out of a suit commenced by the plaintiff for recovery of possession of the lands in suit on establishment of his title to the same. The lands in dispute consist of several C.S. plots situated partly in Mouza Goaldi and partly in Mouza Paikandi and they formerly be-longed to one Edon Molla who held them as an occupancy raiyat under two sets of landlords. The plaintiff Mahendra had 8 anna share in the superior interest, while the remaining 8 anna share belonged to Dakshina and Ramesh. In 1920 Mahendra instituted a rent suit against Edon Molla making his cosharers parties defendants. The suit was decreed and in execution of the same the holding was put up to sale and purchased by Mahendra himself on 20th July 1923. He obtained symbolical possession on 6th June 1926 but when he attempted to take actual possession of the lands he was resisted by the defendants which led to the institution of the present suit.
2. The suit was contested by defendants 10 and 13 only. Their case was that one Jahanara who was the predecessor of defendants 7 to 12 had purchased all the lands in suit with the exception of plots Nos. 368 and 451 of Mouza Goaldi in execution of a money decree against Edon Molla on 21st June 1923. The remaining two plots were purchased by defendant 13 in execution of another money decree obtained against Edon on 30th July 1919. As these purchases were earlier than that of Mahendra, the latter, it was contended, could not acquire any right against the defendants as his own purchase was in execution of a money decree and not a rent decree. The whole controversy practically centres round the point as to whether it was a money sale or rent sale at which Mahendra purchased the property. If it was a money sale the defendants would have undoubtedly prior rights, whereas if it was a rent sale, the holding itself would pass, and the interest, if any, of the previous purchasers would stand extinguished. Both the Courts below have decided this point in favour of the plaintiff and only some of the defendants have come up on appeal to this Court.
3. It is not disputed that the rent suit instituted by Mahendra in 1920 was in conformity with the provisions of Section 148A, Ben. Ten. Act, and the decree was consequently a rent decree. What is urged on behalf of the appellants is, that as no notice under Section 158B(2), Ben. Ten. Act, (which is now Section 148A (7) of the present Act) was served on the cosharer landlords, the sale which followed could not have the effect of a rent sale and it passed only the right, title and interest of the persons named as judgment-debtors. Both the Courts below have found in effect that no notice under Section 158B(2), Ben. Ten. Act, was actually served on the cosharer landlords but it is held that they received a notice in connexion with the execution proceedings which purported to be under Order 21, Rule 22, Civil P.C., and were in fact aware of the sale.
4. The question as to how far the want of a notice under Section 158B(2), Ben. Ten. Act, affects a sale held under chap. 14 of the Act, has been considered in several cases by this Court, though the decisions cannot be said to be, by any means, uniform. In Sarip Hochan v. Tilottama Debi ('20) 7 AIR 1920 Cal 555, which is the earliest case on this point, it was held by Fletcher and Newbould JJ. that the provisions relating to notice as contained in Section 158B(2), Ben. Ten. Act, were mandatory and the Court was not empowered to sell the tenure or holding unless a notice was so given. The learned Judges laid stress on the word 'shall' in the section occurring before the words 'before proceeding to sell.' This was a suit for possession by a purchaser of an occupancy holding at a private sale which was recognized by some of the cosharer landlords. The other cosharer landlords who did not recognize the purchase instituted a rent suit against the old tenant making the remaining cosharers parties to the suit and in execution of the decree obtained in that suit, the holding was sold and purchased by the decree-holders.
5. The suit was decreed by the Courts below on the ground that the defendant did not acquire the holding by his purchase at the so-called rent sale, as there was no notice served on the other cosharer landlords under Section 158B(2), Ben. Ten. Act, and this view was affirmed on appeal by this Court. This case was followed by Chatterjee and Panton JJ., in Ahmad Biswas v. Benoy Bhusan Gupta ('19) 6 AIR 1919 Cal 402, and it was held, that if a cosharer landlord wanted to have the sale of a tenure or holding, the provisions of Section 158B (2) which were mandatory, must be complied with and in case of non-compliance with the provisions of this section, the purchaser at such a sale would be in the position of an ordinary purchaser under a money decree. Both these decisions were considered and distinguished by Sir Ashutosh Mookerjee and Chotzner JJ., in Rajani Kanta v. Sheik Rahaman Gazi : AIR1924Cal408 . The learned Judges were of opinion that the provisions as to notice in Section 158B(2) were only for the benefit of the cosharer landlords and the latter could certainly contest the legality of the sale if no notice was served on them. It was, however, open to the cosharer landlords to waive their right to notice under this section, and if they were actually aware of the sale and acquiesced in it, the want of a notice would not nullify the sale or alter its character to that of a sale held in execution of a money decree. This view has been accepted by the Patna High Court in Badlu Pathak v. Sibram Singh ('28) 15 AIR 1928 Pat 234 and Bacha Singh v. Daro Singh ('32) 19 AIR 1932 Pat 284.
6. In my opinion the view taken in these cases is sound and should be followed. Section 158B (2) prescribes an additional formality which has got to be complied with, when the decree that is executed is one for rent obtained by a cosharer landlord in a suit framed under Clause (1) of that section. Before the tenure or holding is sold the Court is required to give notice of the application for execution to the cosharer landlords. I must say, at the outset, that some amount of confusion has been caused by the somewhat loose way in which the expressions 'nullity' and 'irregularity' have been used with respect to sales held in contravention of this Sub-section. It cannot be maintained, and it has not been suggested in any of the decisions mentioned above, that a sale held without complying with the provisions of the section is a nullity out and out, and void for want of jurisdiction. The sale is still good as a money sale and it would pass the right, title and interest of the judgment-debtor. It is also not correct to say that it is an irregular sale, which would mean that it has to be set aside by a proper proceeding on proof of substantial loss to the aggrieved party. The sale is in any event a legal sale, and the only consequence that can possibly follow, if the requirements of the section were not complied with, is that it would have the effect of a money sale. The question really is, whether the giving of this notice as required by the section is an essential pre-requisite to the Court acquiring jurisdiction to put up to sale the holding or tenure, or it is a provision intended merely to safeguard the interests of the other co-sharer landlords.
7. It seems to me that the latter view is correct. It cannot be suggested that unless there was a notice given to the cosharer landlords as prescribed by the section the decree that is executed does not acquire the force and effect of a rent decree proper : for the decree being made in a suit framed under Section 148A, Ben. Ten. Act, was already a rent decree under the Act. On the other hand the interests of the cosharers are likely to be affected in some respects if the whole holding or tenure is sold. If any rent was due to them from the tenant, they could not make the holding in the hands of the purchaser liable for the same, but would have to look to the surplus sale proceeds only, for satisfaction of their existing claims. It seems, therefore, proper to hold that the provision was made exclusively for the benefit of the cosharer landlords. If this position is accepted, the conclusion necessarily follows, that it is the cosharers alone who can impeach the sale on the ground of want of notice, and it is open to them also to waive their right to notice, and treat the sale as a rent sale. If they did not receive any notice and did not waive their right to it it would not be necessary for them to start a proceeding to set aside the sale; they could refuse to treat the sale as a rent sale and go on asserting their rights in the same way as if the sale was of the right, title and interest of the judgment-debtor alone. In this view the decisions in In Sarip Hochan v. Tilottama Debi ('20) 7 AIR 1920 Cal 555 and Ahmad Biswas v. Benoy Bhusan Gupta ('19) 6 AIR 1919 Cal 402 can be supported. In the second of these two cases it was the cosharer landlord who filed a rent suit ignoring the previous sale held at the instance of his cosharer, and this he was certainly entitled to do. In Sarip Hochan v. Tilottama Debi ('20) 7 AIR 1920 Cal 555 the plaintiff was indeed the previous purchaser of the occupancy holding but his claim to possession rested on recognition by some of the cosharer landlords upon whom notice was not given of the sale at which defendants purchased the holding.
8. In the present case there is certainly no evidence to show that the cosharers of the plaintiff actually acquiesced in the sale, waiving their objections to it under Section 158B(2), Ben. Ten. Act. On the other hand they started proceedings under Order 21, Rule 90, Civil P.C., for setting aside the sale, and being unsuccessful in that filed a suit for rent against the old tenant ignoring the sale altogether and making the plaintiff a party to the same. In the rent suit this very question was raised and it was held by the original and the appellate Courts that the cosharers were aware of the sale and did receive a notice though the notice was not in strict conformity with the provision of Section 158B(2), Ben. Ten. Act. It was further held on the authority of this very decision in Rajani Kanta v. Sheik Rahaman Gazi : AIR1924Cal408 , that as the cosharers after being apprised of the sale kept quiet and did not take any steps, there was waiver on their part. This finding in my opinion is conclusive for the purpose of the suit, and it must be held that the cosharer landlords of the plaintiff did waive their rights to a notice under Section 158B(2), Ben. Ten. Act. This decision is not only binding on the cosharer landlords but it is binding on Edon Molla also who was a party to the rent suit, and against whom the suit was dismissed on the ground that the holding vested in Mahendra. The contested defendants who are unrecognised purchasers of the interest of Edon cannot certainly claim higher rights. The result is that I affirm the decisions of the Courts below and dismiss the appeal. There will be, however, no order as to costs.
9. The decree obtained by the plaintiff's predecessor Mahendra in 1920 under Section 148A, Ben. Ten. Act, as it then stood, was, as regards the remedies for enforcing the same, within the terms of that section 'as effectual as a decree obtained by a sole landlord or an entire body of landlords in a suit brought for the rent due to all the cosharers.' Mahendra therefore had the right to bring the whole holding to sale in a proceeding which would pass the holding, and he did so. Part of the procedure for sale required by the terms of Section 158B(2) was that the Court should give notice of that sale to the cosharer landlords Proper notice was not given, and the effect was that there was an irregularity in that sale. My view is that any person interested could have applied under Order 21, Rule 90 to have the sale set aside and could have succeeded if he brought his case within the provisions of that rule. The time for this has now expired, and the sale stands good as a sale of the entire holding. It is to be noted that the sale took place in 1923 in Eastern-Bengal, before the amendments of 1928, which have made full provisions for these matters in Section 174, Ben. Ten. Act, and have excluded the operation of the provisions of Order 21, Rule 90, Civil P.C. I am unable to understand how any failure by the Court to follow the procedure prescribed for bringing the whole holding to sale where the decree-holder by virtue of his decree and the terms of Section 148A as then in force had power to do so, and was purporting to do so, can have the effect of turning that sale into something of a different character, namely a sale merely of the right, title and interest of the judgment-debtor. I can understand a view that, the requirements of Section 158B(2) being mandatory, the Court had no jurisdiction to bring the holding to sale and therefore nothing was sold at all, the whole proceeding was a nullity; and I can understand a view that the holding was sold in an irregular manner, and was liable to be set aside.
10. I cannot understand a view that the irregularity could have the effect of changing the character of what purported to be sold. I do not think the correct view is that the issue of notice under Section 158B (2) is mandatory, and a condition precedent to give the Court jurisdiction to sell at all. I think the correct view is that in omitting to give proper notice under that provision the Court committed an irregularity and the sale of the entire holding remained good subject to proceedings under Order 21, Rule 90. I may add that in practice it seems hard to conceive of a case in which anyone but a cosharer landlord could show that failure to give proper notice would justify any action under Order 21, Rule 90, so that in practice it would appear that only a cosharer landlord who had not received notice could attempt to challenge a sale on this ground. The view I take has the immense advantage that the irregularity will be quickly cured by time, if no one, either a cosharer landlord, or other person who may conceivably have some rights under Rule 90, takes action to have it remedied. The other views that the character of the sale remains to be determined at any subsequent time whenever the question is raised, and is to depend on whether it is shown that regular notice was served or not, and the modification of that view that irregularity or defect in procedure as to service may be cured if acquiescence of the cosharer landlord is proved, leads to great disadvantage and uncertainty, and I cannot think that it was ever the intention of the legislators in inserting the provisions of Section 158B(2) to produce such a state of affairs, nor do I think that in fact they did so.
11. If a decree is not effective to empower the decree-holder to bring the entire holding to sale then even if he purports in execution to sell the entire holding it is clearly correct to hold that he has not sold more than the decree in fact entitled him to sell, namely the right, title and interest of the judgment-debtor: the sale itself cannot be set aside for any defect in the proceedings leading to the decree. I cannot see how the same principle applies to defective procedure by the Court in putting into execution a decree which undoubtedly gives the decree-holder the right to sell the whole holding, and where he in fact applies to sell and purports to sell the whole holding and where there is provision for setting right errors of procedure in conducting sales. The suggestion that this should be so seems to be due to some confusion produced perhaps by the rather clumsy drafting of Section 158B itself particularly by the opening words of the section. Most of that section was really superfluous and in fact it was omitted when the amendments of 1928 were made; the substance so far as suits are concerned being included in Clauses 6 and 7 of Section 148A. In the result though for a different reason I agree with my learned brother that this appeal should be dismissed.