Bulaki Sadagar vs Malati Mejhan Santal

Das Gupta, J.—This appeal is against the decision of the learned District Judge, Bankura, confirming a judgment and decree of the trial court, in a suit by some aboriginals for a declaration that the auction sale held in Rent Execution Case No. 423 of 1933 of the Third Munsif''s Court, Bankura, was null and void. The ground that was urged by the Plaintiffs for the declaration was that the executing court did not observe the provision of Section 49L of the Bengal Tenancy Act. Section 49L provides that-

If the sale of a tenure or holding, or any portion thereof, is ordered in execution of a decree against an aboriginal tenure-holder; raiyat or under-raiyat in respect of such tenancy or portion thereof, the Court executing the decree shall allow the tenant reasonable time in which to pay the amount due.

Both the courts came to the conclusion that reasonable time had not been given by the executing court and so the provisions of Section 49 L were contravened.

The question then arises whether the sale was a nullity in consequence of this contravention. The mere fact that a statutory provision has been contravened does not produce the consequence that the sale was null and void.

In Ashutosh Sikdar v. Beharilal Kirtania ILR (1907) Cal. 61, where a sale had been held in contravention of the terms of Section 99 of the Transfer of Property Act, the Full Bench had to consider the question whether the sale was a millity or only an irregular sale and liable to be avoided in the appropriate manner and the Full Bench held that such a sale was not a nullity. Mookerjee J. observed:

It cannot be affirmed as a proposition of law of universal application that noncompliance with every provision of the law makes any proceeding a nullity....

Later in his judgment discussing the question whether the non-observance of the provisions of Section 99 would make the sale a nullity, his Lordship observed:

All that Section 99 provides is, that the property shall be sold, only after a decree for sale has been obtained on the basis of the mortgage. The Court, has undoubted jurisdiction over the subject-matter out of which the two debts are to be realised: it is unquestionably competent to exercise a judicial power, namely, the power of sale in relation to it. Section 99 only prescribes the mode in which such power is to be exercised. When a sale is, therefore, held in contravention of Section 99, the court cannot be said to exercise a jurisdiction which it does not possess; it can at most be said to assume and exercise, in an irregular manner, the jurisdiction which it possesses....

His Lordship further observed:

Where the Court possesses inherent jurisdiction over the subject-matter, and merely assumes or exercises that jurisdiction over the subject-matter, in an irregular or illegal manner, the objection in such a case may be waived, and may, in general, be assumed to be waived," and that "when the object of the statute has been determined, if the statutory provision is not based on grounds of public policy, and is intended only for the benefit of a particular person or a class of persons, the conditions prescribed by the statute are not considered as indispensable and may be waived.

Applying these principles to the present case, I have no hesitation in saying that the provisions of Section 49K are not on the ground of public policy but for the protection of a particular class only and that they can be waived. It was open to the aboriginals concerned to raise this question in an appropriate application to the executing court-as it may be observed was done in the case reported in Ardha Chandra Saha v. Nomani Garoni (1938) 69 C.L.J. 120 and in the case reported in Bijoy Chandra Singha Chaudhuri v. Doman Singha Patiraj ILR (1948) Cal. 320. As that was not done and as the sale cannot be held to have been a nullity, the present suit by the aboriginals must be held to be incompetent.

I would, accordingly, allow the appeal, set aside the judgment and decree of the courts below and order that the suit be dismissed.

Parties will bear their own costs in all the courts.

Guha, J.

I agree.