1. These appeals arise out of two suits, Appeal No. 974 out of suit No. 29 of 1938 and Appeal No. 975 out of Suit No. 33 of 1938. The appellant was the plaintiff in both. Suit No. 29 of 1938 was a suit for declaration of title and recovery of possession, and Suit No. 33 of 1938 was a suit for rent. The plaintiff's case was that she had a patni under a permanently settled estate, Char Balammara and that under the patni there was an under-tenure. On 29th November 1934 she obtained a decree for rent against the holders of the under-tenure, eight annas of the under-tenure belonged to a ward whose property had been taken charge of by the Court of Wards and the other eight annas to other persons. On 6th July 1936 she purchased the under-tenure in execution of the rent decree. On 7th July 1937, the sale was confirmed. She then annulled the under-tenure by notice under Section 167, Ben. Ten. Act, and brought the present suits, one to recover possession of the khas lands and the other to recover rent from the tenants of the holders of the under-tenure. The defence was (1) that Char Balammara was not permanently settled but temporarily settled and accordingly the under-tenures were 'protected interests' which could not be annulled; (2) that as one-half of the under-tenure was under the Court of Wards at the time of the auction sale the sale was in contravention of Section 100, Bengal Court of Wards Act, 1897, as amended in 1936, and was therefore a nullity. The trial Court gave effect to both these contentions and dismissed both suits. The lower appellate Court agreed with the trial Court as to the sale being a nullity but did not go into the first point. Both the appeals were accordingly dismissed; hence these second appeals.
2. The points urged before me, which raise questions of first impression, are : (1) that on a proper construction of Section 10G, Court of Wards Act, the sale, though in breach of the section was not void but merely voidable; (2) that the manager of the Court of Wards waived his right to avoid the sale. The relevant portion of Section 100(1) is in the following terms:
Where any property is in charge of the Court of Wards no civil Court shall execute any decree or order against the person or property of the ward within four years from the date of the commencement of the Bengal Court of Wards (Amendment) Act, 1935, or from the date of the assumption of charge of the property by the Court of Wards, whichever is later, and for seven years thereafter if the interest due under such decree or order be paid in full every year during the said seven years.
3. The rest of the section is not material for our present purposes and need not be reproduced here. This section was inserted in the Act by Bengal Act, 6 of 1936, in place of the previous Section 10C which ran:
If a civil Court has directed any process of execution to issue against any immovable property of a ward, or rents thereof or any crops standing thereon, the Court of Wards may at any time within one year after it assumed charge of such property, apply to the civil Court to stay proceedings in the matter of such process; and the civil Court may, on such terms regarding interest or compensation for delay as may appear to it to be just and reasonable, stay such proceedings for such period as it may deem fit.
4. The new section was in force when the sale in the present case was confirmed though not when the rent decree was obtained; but nothing turns on the latter circumstance because it has been held in Habiba Bibi v. Ram Ranjan Mallick : AIR1937Cal207 that the section is retrospective in operation and applies not only to decrees obtained before its commencement (March 1936), but also to execution proceedings pending at that date. The new section therefore applies to the present case, and as the under-tenure was in part property in the charge of the Court of Wards, the confirmation of the sale was in clear breach of the section. The question is, what was the effect of this breach? Did it render the sale void or merely void, able? This is the first point taken before me. The statute itself is silent as to the effect of; the breach and the question really is what intention is to be attributed by inference to the Legislature. There is no hard and fast rule on this subject. In Maxwell's 'Interpretation of Statutes' the position is put thus:
It has been said that no rule can be laid down for determining whether the command is to be considered as a mere direction or instruction involving no invalidating consequence in its disregard or as imperative, with an implied nullification for disobedience, beyond the fundamental one that it depends on the scope and object of the enactment. It may, perhaps, be found generally correct to say that nullification is the natural and usual consequence of disobedience, but the question is in the main governed by considerations of convenience and justice, and, when that result would involve general inconvenience or injustice to innocent persona, or advantage to those guilty of the neglect, without promoting the real aim and object of the enactment, such an intention is not to be attributed to the Legislature. The whole scope and purpose of the statute under consideration must be regarded : (Maxwell, Edn. 8, page 321).
5. In other words, the presumption is in favour of nullity but it can be rebutted by showing that it would result in general inconvenience or injustice. The author goes on to say that enactments regulating the procedure in Courts seem usually to be imperative and not merely directory (op. cit. P. 324). In Ashutosh Sikdar v. Behari Lal ('08) 35 Cal. 61at p. 72 Mookerjee J., has pointed out that a well-established test to distinguish between these two classes of cases is to see whether the provision is such that the right to object to its breach can be waived by the party concerned; if it can, the provision is not mandatory and its breach does not nullify the proceeding.
6. There are at least three cases in which the Judicial Committee of the Privy Council have held that the provisions relating to procedure prescribed in the Code of Civil Procedure are mandatory : (1) Bhag Chand dagadusa v. Secretary of State . This case dealt with S.80, Civil P.C. which, as it then stood, provided that no suit shall be instituted against the Secretary of State for India in Council or against a public officer in respect of any act purporting to be done by such public officer in his official capacity until the expiration of two months next after notice in writing. It was contended before their Lordships that the section is merely part of a Procedure Code, passed to provide the machinery by means of which the Courts may do justice, that a construction which might lead to injustice ought not to be adopted, and that the implication of a suitable exception or qualification was, therefore, justifiable. Their Lordships, however, preferred to take the view that the section was express, explicit and mandatory, admitting of no implications or exceptions and that if it led to injustice it should be rectified by legislation. It must, however, be stated that the question which arose in that case related not to the jurisdiction of the Court to entertain a suit brought without the statutory notice but to the applicability of the statute to a suit brought for the purpose of obtaining an injunction. (2) Gaekwar Baroda State Railway v. Hafiz Habib-Ul-Haq. This case related to Sections 86 and 87, Civil P.C. which provided inter alia that a sovereign prince or ruling chief might with the consent of the Governor-General in Council but not with, out such consent be sued in any competent Court. Their Lordships held that the sections related to an important matter of public policy in India and that the express provisions contained therein were imperative and must be observed. They added that in view of the public purposes which the provisions served they could not be waived. (3) Raghu Nath Das v. Sunder Das Khetri ('14) 1 A.I.R. 1914 P.C. 129. This case related to Section 248, Civil P.C. of 1882 corresponding to Order 21, Rule 22 of the present Code, which required that when an application for execution was made against the legal representative of a party to the decree the Court executing the decree must issue a notice to the person against whom execution was applied for, requiring him to show cause why the decree should not be executed against him. Their Lordships held that where no such notice was served, the sale was without jurisdiction and inoperative. They distinguished it from the earlier decision in Malkarjun v. Narhari ('01) 25 Bom. 337 where a notice was served on the person whom the Court considered to be the legal representative, although, it transpired afterwards that he was not the legal representative. In such a case, they pointed out, there was jurisdiction to execute the decree and the resulting sale held good unless or until set aside by appropriate proceedings.
7. It is thus clear that a statutory provision cannot be said to be directory as distinct from mandatory merely because it may relate to procedure. This suffices to dispose of the argument advanced before me that Section 10C, Court of Wards Act, merely deals with procedure in execution and that disregard of its provisions, while it may be a material irregularity justifying an application for the setting aside of the resulting sale, does not make the sale void. We have to look for other indications of the intention of the Legislature, and it so happens that all these other indications in the present case point to the view that the Legislature intended the section to be mandatory on pain of nullity. In the first place it may be noticed that the previous Section 10C empowered the Court of Wards to apply for stay of execution and gave the executing Court discretion either to grant or to refuse stay. The new section makes any application by the Court of Wards unnecessary and leaves no discretion to the civil Court to refuse stay of execution; the civil Court is flatly prohibited for a certain period from executing a decree against any property in the charge of the Court of Wards irrespective of the wishes of the Court of Wards in the matter. The power to refrain from applying for stay of execution, or what comes to the same thing, the power to consent to execution has been deliberately taken away from the Court of Wards. This is a clear indication that it is no longer open to the Court of Wards to waive the benefit of the section. In the second place it is obvious that the provision is intended inter alia for the benefit of all the creditors of the estate in the hands of the Court of Wards. It ensures that a single creditor shall not be in a position to enforce his claim until the Court of Wards has had time to consider the claims of other creditors also. To treat such a provision as merely directory and its benefits as weighable by the manager of the Court of Wards, possibly under pressure from a single importunate creditor, might work injustice to the general body of creditors and thereby defeat the object of the provision. Finally, the provision embodies a matter of public policy and must be held to be imperative. Both the Courts below have thus taken a correct view of the section and these appeals must, therefore, be dismissed. As the questions raised are of first impression the parties will bear their own costs in this Court. Leave to appeal under Clause 15, Letters Patent, is prayed, for and is granted.