Moothedath G. Jaipalan and Another vs Sanjit K. Roy and Others

Basudeva Panigrahi, J.—The appeal is against the judgement and decree passed to Title Appeal No. 866.86 affirming the final decree dated 26th August 1985 of the Sub-ordinate Judge, 3rd, Court. Alipore in Title Suit No. 124/67. Essential facts leading to the present appeal are as follows :

Rai Bahadur Dr. Chandra Kanta Chakraborty was the original owner who purchased 6 cottahs 15 chittaks 41 sq. ft. of land in premises No. 65. Rash Behari Avenue, Calcutta-27 from the Calcutta Improvement Trust. He gifted a specified portion and delineated 2 cottahs 2 chittaks 16 sq. ft. within the boundary line with frontage on Rash Behari Avenue to his daughter-defendant No. 3 Smt, Charu Bala Devi since dead, which was separately marked and renumbered by the Corporation of Calcutta as 65B, Rash Behari Avenue. The remaining land measuring 4 cottahs 13 chittaks 25 sq. ft. a vacant plot of land, was subsequently marked and renumbered as premises No. 65A, Rash Behari Avenue, which is now covered under the suit. Smt. Charu Bala Devi, the defendant No. 3 (since deceased) subsequently constructed a 4 storied building on the premises No. 65B which she had received from her father-original owner, according to a building plan sanctioned jointly for her land and also for the suit premises No. 65A, Rash Behari Avenue. Before proceeding with any construction as per the sanctioned plan on premises No. 65A, Rash Behari Avenue the original defendant No. 1 Saroj Chandra Sen, (substituted by the appellant had persuaded the original owner for letting-out the premises No. 65A, Rash Behari Avenue for the purpose of storing building materials with the assurance to vacate the same whenever required by the original owner at a monthly rental of Rs. 40/- according to English Calender month. Since he already occupied a portion from the premises No. 65B, Rash Behari Avenue as a tenant under the defendant No. 3. Subsequently when the defendant No. 1 had declined to vacate the suit premises on demand by the original owner, an ejectment suit bearing T.S. No. 245/47 was instituted in the 1st Court of Munsif at Alipore after terminating the tenancy of the original defendant No. 1 in the suit premises. The said suit was decreed in favour of the original owner and no appeal was filed against the judgment and decree of ejectment by the defendant No. 1. In the meantime, the original owner died leaving behind his 8 sons who inherited the suit premises in equal shares. Since the defendant No. 2 was living separately from his father and he sold away his 1/8th share in the suit premises to the husband of the original defendant No. 3 Smt. Charubala Devi the defendant No. 2 thereafter did not possess any interest The defendant No. 1 with a view to delaying and defeating the purpose of the said decree of ejectment in the T.S. No. 245/47 and the Title Execution Case No. 122 of 1950 raised katcha structures and let out the structures to different tenants, he also lodged a Misc. Case u/s 47 of the C.P. Code and T.S. No. 80 of 1957 in the Court of learned 2nd Sub-ordinate Judge for declaration that he was a thika tenant and the previous judgment and decree in ejectment suit was a nullity and the defendant No. 1 lost in Misc. Case as well as the suit. Thereafter, the defendant No. 1 filed the Misc. Case No. 2953 u/s 5(2) of the Calcutta Thika Tenancy Ordinary of 1952 before the local 1st Court of Munsif and secured the order on 11.2.56 setting aside the previous decree of ejectment and consequently declaring the execution proceeding to be unenforceable in law. The said ejectment suit was subsequently converted into Misc. Case No. 54 of 1956 in the Court of the 1st Munsil at Alipore. During the pendency of the said Misc. Case the defendant No. 1 purchased 1/7th share of Subodh Kumar Chakra-borty the youngest son of original owner and thus he became the co-sharer to the extent of 1/7th Share. In the meantime, Sri Sarojit Kumar Chakraborty another son of the original owner, died as a result of which the 7 sons of the original owner inherited his 1/7th share and therefore, their share was little augmented. The defendant No. 2 after the safe of his 1/8th share to the husband of defendant No. 3 acquired l/56th share in the suit premises. In the above manner, the plaintiffs also acquired 5/7th share covering 3 cottahs 7 chittaks 17.6/7 sq. ft. out of 1 cottah, 6 chittaks and 8 sq. ft. the defendant No, 1 had 1/7th share, the defendant No. 21/56th share and defendant Nos. 3 to 5 jointly had 1/8th share. When the defendants did not agree to amicable partition of the suit premises the plaintiffs were, obliged to file the present suit for partition by metes and bounds.

The defendant No. 1 and the defendant Nos. 3 to 5 had filed two sets of separate written statement. The defendant Nos. 3 to 5 in their joint written statement had supported the plaintiffs case; admitted the respective shares of the parties and denied the alleged Thika Tenancy Right of the defendant No. 1. The defendant No. 1 in his written statement has, inter alia, stated that the partition suit was not maintainable unless his Thika Tenancy Right is extinguished by law or by the acts of the parties according to the provisions of law; that the defendant''s uncle Sri R.C. Sen after taking Thika Tenancy from the original owner had constructed as many as 12 structures over the premises with the implied consent of the original owner whereafter this defendant No. 1 took settlement of the land of the suit premises with Thika Tenancy Right from the original owner and continued to possess the structures raised by his uncle Sri R.C. Sen.

With the above pleadings, the parties were led to trial. The 1st Subordinate Judge, 3rd Court at Alipore by the preliminary decree declared the respective shares of the parties. The defendant No. 1 thus, allowed judgment and decree passed by the trial Court as final and conclusive without filing any appeal. Thereafter, the plaintiffs filed an application for passing of the final decree in terms of the preliminary decree. In the aforesaid final decree proceeding a partition commissioner was appointed who affected the division of the properties and separately allotted different shares in terms of the preliminary decree and submitted his report. The learned trial Court passed the final decree accepting the Commissioner''s report. The defendant No. 1 preferred an appeal in T.S. No. 866/85 in the Court of the District Judge, Alipore which was eventually transferred to Additional District Judge. 11th Court, Alipore. That too was dismissed. Thus, being aggrieved by both the judgments passed by the trial Court as well as the Appellate Court, the defendant has approached this Court by filing the 2nd appeal.

Mr. P.B. Sahoo, the learned Senior Advocate, has argued in support of the appeal. He has submitted that since the appellants have neither surrendered u/s 8 not abandoned their rights u/s 9 of Thika Tenancy Act the findings of trial Court as regards such abandonment was without jurisdiction and therefore the judgment and decree passed by the trial Court are to be held as invalid and inoperative in law. He has further contended that the plaintiff in their pleadings having admitted the appellant to be a Thika Tenant and no plea of surrender having been made in the plaint, the findings arrived thereto are without jurisdiction. The issue No. 3 in the original suit was, dehors, the pleadings and, therefore, any amount of discussion regarding the question of surrender being outside the scope of suit should, equally, be held that those findings rendered were beyond the jurisdiction of the Court. Once the Court decided those findings were beyond the Scope of the suit and consequently was not within the scope or ambit of the pleadings. The judgment and preliminary decree passed in the suit were to be held as nonest in the eye of law. The issues were recast on the application of the plaintiffs dated 1.12.1981 the trial Court held that the appellants had forfeited their right of Thika Tenancy. Since such finding was beyond the parameter of the suit resulting the judgment and decree to be void.

Mr. Sahoo has also taken me through the averments of the written statement and persuaded further that the defendant No. 1 had taken a plea that the suit land was impartible. There was no notice by the Thika Tenant to the owner therefore, there was no question of surrender. Thus both the Courts have illegally passed the final decree in terms of the preliminary decree which is invalid, void and inoperative in law.

Mr. Sahoo has raised an interesting question that after passing of Thika Tenancy Act, the landlords'' interest vested in State Government. Therefore, no final decree could be passed. The interest of the lessor and the lessee must amalgamate over the whole property otherwise there is no question of merger, the appellants have never surrendered the rights of Thika Tenancy in respect of the other portion which was not purchased by them. Therefore, the findings of the Court below in the preliminary decree that the appellants had surrendered their rights and consequently, there was a merger with superior right does not stand to reason.

If the decree is nullity its correctness can even be raised in the execution case.

Mr. Sudish Dasgupta, the learned Senior Advocate appearing for the plaintiff/respondents, while repelling the contention of the appellant has advanced series of submissions that the appellant is precluded from challenging the correctness of the preliminary decree u/s 97 of the C.P.C. From his further submission, it appears that in so far as the notice as contemplated u/s 8 of Calcutta Thika Tenancy Act is concerned, it is merely directory and such notice must be construed only for the benefit of the landlord. There is no legal embargo or impediment for a Thika Tenant to surrender his right without causing service of notice. If any party is aggrieved against the judgment and preliminary decree in a suit for partition the remedy available to him is either to file an appeal or review. Save and except no challenge can be allowed to be made against such preliminary decree. Even assuming the Court wrongly passed a decree, the decree cannot be challenged without filing an appeal. The appellant cannot challenge the correctness of the preliminary decree in an appeal against the final decree. Here the correctness means a challenge to the jurisdiction of the Court which passed the decree. The appellants have not filed any application even before the trial Court in the final decree proceeding challenging the correctness of the preliminary decree. Assuming the appellants to be Thika Tenants, at least from 1961 they have not paid any rent to the plaintiff nor deposited the same. Issue No. 3 was recast on the basis of the pleadings and the Court while passing the preliminary decree rendered its findings on those issues and held that there was valid surrender by the appellants, when the scope of appeal against the final decree is limited, the appellate Court cannot enlarge the scope of appeal and hold that preliminary decree passed earlier is nonest.

Mr. Roy Chowdhury, the learned Senior Advocate appearing for the defendant Nos. 3 and 4, has submitted that in a suit for partition normally two types of decree are drawn up, firstly, the preliminary decree declaring the rights of the parties, (ii) the final decree determining the respective shares to which the parties were entitled under the preliminary decree. If no appeal was preferred by either party against the preliminary decree, their right is extinguished u/s 97 of the C.P.C. Section 3 of the limitation Act provides that the right of a party shall be extinguished on the expiry of period of limitation and thereafter, he shall be precluded from claiming the rights of the adversary over the properly. It is quite likely that there may be some irregularities in the judgment but those irregularities could be rectified only by the appellate Court in case of an appeal. If the party has allowed the decree to be final and not questioned about the propriety of the same by filing an appeal thereafter, he shall neither be permitted to raise such plea nor such plea could be discussed by the Court touching the validity of the decree

A piquant situation has arisen whether the finding relating to substantive right to a party could be discussed without filing appeal against preliminary decree. A suit which has been decided earlier, could it be declared void, nonest and nullity, subsequently. It is further to be decided whether the judgment passed by the trial Court in a partition suit followed by a preliminary decree is a decree within the meaning of Section 2(2) of the C.P. Code and comes within ambit and scope of Section 97 C.P.C. A question has been raised that whether a party thereto, precluded from agitating the correctness of the finding of the preliminary decree in an appeal against the final decree u/s 97 of the C.P.C. and whether the preliminary decree could be held as void and unlawful. It is indubitably true that the plaintiffs in their suit had admitted about the Thika Tenancy but they had pleaded that the defendant No. 1 having purchased 1/7th share from one of the co-sharer of the plaintiffs has forfeited his subordinate right of Thika Tenancy over the suit property and therefore, by necessary implication surrendered his Thika Tenancy Right and had agreed to effect partition on a Just, reasonable and fair basis. The Court to the basis of the aforesaid pleadings struck issue No. 3 in the judgment which reads as follows:

Can a Thika Tenancy Right of this defendant No. 1 be lawfully defeated, forfeited, terminated or extinguished by this partition suit when bringing the proper proceedings for ejectment under the Thika Tenancy Act as claimed by the plaintiffs?

Both parties declined to lead any oral evidence in the suit before passing of the preliminary decree and therefore, the trial Court had to decide the controversy on the basis of the submission and documentary evidence placed before it. The trial Court held that the defendant No. 1 was declared as a Thika Tenant within the meaning of Section 2(5) of Calcutta Thika Tenancy Ordinary Act. 1952 and that the judgment and decree of the title suit No. 24547 of the 1st Court of Munsif at Alipore were set aside and, consequently, the proceedings in the rent execution case No. 122/50 were annulled. It was further observed that either the plaintiffs or their other co-sharers did not take any steps for terminating the Thika Tenancy of be defendant No. 1 in respect of the suit land. The Court while determining the rights of the parties had carefully considered the question of surrender/forfeiture inasmuch as the defendant No. 1 had purchased the superior right of the landlord from one of the co-sharers. It has also relied on Ext 4(a) and 4(c) together to construe whether the defendant No. 1 had relinquished his right of Thika Tenancy and had sought a fair, reasonable and just partition. The defendant No. 1 had taken the plea that such relinquishment was abdication of Thika Tenancy. The learned trial Court after taking all those submission of the parties into consideration overruled the plea of the defendant No. 1 and directed partition of the suit property. In fact, the defendant No. 1 challenged the legality, propriety and validity of the preliminary decree by filing a regular appeal, but for reasons best known to him, such appeal was not prosecuted and allowed to abate thereby attaching finality to the judgment and preliminary decree.

Mr. Sahoo has placed reliance on a judgment reported to (1) AIR 1921 Cal 34, Full Bench in the case of Hriday Nath Roy vs. Ram Chandra Baran Sarma. In the aforementioned case it has been held as follows:

It follows from these principles that when a Court of competent jurisdiction has made an order under Order XXIII, Rule (12) in circumstances not contemplated by the rule, the order cannot be deemed to have been made without jurisdiction. The Court has jurisdiction to try the suit, and in the exercise of that jurisdiction is competent to make an order for withdrawal with liberty reserved to the plaintiff to institute a fresh suit in respect of the same subject matter. If it is satisfied that circumstances exist which justify such an order. The Court is so satisfied rightly or wrongly: as the Subordinate Judge in the previous suit put It quaintly: "there appeals reason". The Court accordingly makes the order. It is plain that however erroneous the order may be, it is not an order made by a Court without Jurisdiction: it is on the other hand, an order made by a Court of competent Jurisdiction acting with material irregularity in the exercise of its jurisdiction. The order cannot consequently be deemed null and void The party aggrieved may directly impugn the order, and may in an appropriate proceeding, invoke the aid of a superior tribunal to set aside the order, as appears to have been done in the cases brought to our notice, except the case of Kali Prasanna vs. Punchanan (1): but till it has been so vacated, it is operative between the parties and cannot be ignored or challenged collaterally in a different proceeding. There is thus no escape from the position that the decision in Kali Prasanna vs. Punchanan (1) cannot be defended on principle. That decision, indeed, has been doubted on more than one occasion, as pointed out in the Order of Reference.

On a careful reading of the above judgment I am at a loss to understand how this judgment supported the version of the appellant rather, in the aforesaid decision it is held that whatsoever erroneous findings a Court of competent jurisdiction may pass but if it has power to try and decide, such findings shall be treated as valid and binding on the parties to the litigation. In the instant case it has not been submitted by the appellants that the Court which passed the preliminary judgment and decree did not possess the territorial or pecuniary jurisdiction. But wat was argued by Mr. Sahoo is that the Court did not consider properly about this surrender and abandonment. Therefore, such findings being without jurisdiction it can be challenged at the subsequent stage of the suit In the full bench decision cited supra, it has been held that however erroneous order the Court may pass, it does amount to ah order passed by a Court without jurisdiction.

To appreciate, the contention to the parties I feel it appropriate to quote Section 8 of the Calcutta Thika Tenancy Act 1948 :

Surrender. (1) A Thika Tenant not bound by any lease or other agreement for a fixed period may, at the end of a month of the tenancy, surrender his holding, provided that he gives to his landlord at least one month before he surrenders, notice of his intention to do so.

(2) When a Thika Tenant has surrendered his holding the landlord may subject to the provisions of Section 10, enter on the holding and either let it to another tenant or occupy it himself or dispose of it in any way he may think fit.

Mr. Sahoo has argued with great intensity of conviction that the tenant has not served any notice expressing his intention to surrender. The original Thika Tenant had not in fact, surrendered the demised premises, but the Court having recorded such finding that the tenant had surrendered the suit premises was without jurisdiction.

Mr. Sahoo has relied upon a decision reported in (2) Chiranjilal Shrilal Goenka (Deceased) through Lrs. Vs. Jasjit Singh and Others, :

It is settled law that a decree passed by a Court without jurisdiction on the subject-matter or on the grounds on which the decree is made which goes to the root of its jurisdiction or lacks inherent jurisdiction is a coram non judice. A decree passed by such a Court is a nullity and is nonest. Its invalidity can be set up whenever it is sought to be enforced or is acted upon as a foundation for right, even at the stage of execution or in collateral proceedings. The defect of jurisdiction strikes at the very authority of the Court to pass decree which cannot be cured by consent or waiver of the party. In Bahadur Singh vs. Muni Subrat Dass an eviction petition was filed under the Rent Control Act on the ground of nuisance. The dispute was referred to arbitration. An award was made directing the tenant to run the workshop up to a specified time and thereafter to remove the machinery and to deliver vacant possession to the landlord. The award was signed by the arbitrators, the tenant and the landlord. It was filed in the Court. A judgment and decree were passed in terms of the award. On expiry of the time and when the tenant did not remove the machinery nor delivered vacant possession, execution was levied under Delhi and Ajmer Rent Control Act. It was held that a decree passed in contravention of Delhi and Ajmer Rent Control Act was void and the landlord could not execute the decree. The same view was reiterated in Kaushalya Devi (Smt.) vs. K.L. Bansal In Ferozi Lal Jain vs. Man Mal a compromise dehors grounds for eviction was arrived at between the parties u/s 13 of the Delhi and Ajmer Rent Control Act A decree in terms thereof was passed. The possession was not delivered and execution was laid. It was held that the decree was nullity and, therefore, the tenant could not be evicted. In Sushil Kumar Mehra vs. Gobind Ram Bohra (dead) through his LRS. the Civil Court decreed eviction but the building was governed by Haryana Urban (Control of Rent and Eviction) Act (It of 1973). It was held that the decree was without jurisdiction and its nullity can be raised to execution. In Union of India vs. Ajit Mehta and Associates, Pune a Division Bench to which Sawant, J. (as he then was), a member was to consider whether the validity of the award could be questioned on jurisdictional issue u/s 30 of the Arbitration; Act. The Division Bench held that Clause 70 of the contest provided that the Chief Engineer shall appoint an Engineer Officer to be sole arbitrator and unless both parties agree, in writing such; a reference shall not take place until and completion of the works or termination or determination of the contract. Pursuant to this contract u/s 8 of the Act, an arbitrator was appointed and award was made. Its validity was questioned u/s 30 thereof. The Division Bench considering the scope of Sections 8 and 20(4) of the Act and on review of the case law held that Section 8 cannot be invoked for appointment of an arbitrator unilaterally but Section 20(4) of the Act can be availed of in such circumstances. Therefore, the very appointment of the arbitrator without consent of both parties was held void being without jurisdiction. The arbitrator so appointed inherently lacked jurisdiction and hence the award made by such arbitrator is nonest. In Ghellabhai case Sir C. Farran Kt., C.J. of Bombay High Court held that the probate Court alone is to determine whether probate of an alleged Will shall issue to the executor named in it and that the executor has no power to refer the question of execution of Will to arbitration. It was also held that the executor having propounded a Will and applied for probate a caveat was filed denying the execution of the alleged Will, and the matter was duly registered as a suit, the executor and the caveatrix subsequently cannot refer the dispute to arbitration, signing a submission paper, but such an award made pursuant thereto was held to be without jurisdiction.

He contended that if a decree passed by a Court is without jurisdiction propriety of such decree can be questioned at any time. Since the question of notice goes to the root of jurisdiction and its non-compliance renders the judgment nullity and nonest. As such its invalidity can be challenged if any stage of the same proceeding or even in a collateral proceedings. The aforesaid judgment has no application in the present case. The arbitrator patently had no jurisdiction to decide the genuineness of a Will and/or to grant probate of a Will which is exclusively within the domain of the, probate Court under the Indian Succession Act Therefore, the Hon''ble Supreme Court had observed in the aforementioned decision that such finding being without jurisdiction can be challenged in any proceedings.

Mr. Sahoo has relied upon Section 5 of the Calcutta Thika Tenancy Act. 1949 :

Proceedings for ejectment (2) Notwithstanding anything contained in any other law for the time being in force a landlord wishing to eject a Thika Tenant on one or more of the grounds specified in Section 3 shall apply in the prescribed manner to the Controller for an order in that behalf and, on receipt of such application, the Controller shall after giving the Thika Tenant a notice to show-cause within thirty days from the date of service of the notice why the application shall not be allowed and after making an inquiry in the prescribed manner either allow the application or reject it after recording the reasons for making such order, and, if he allows the, application shall make an order directing the Thika Tenant to vacate the holding and, subject to the provisions of Section 10, to put the landlord in possession thereof.

(2) No order allowing an application under sub-section (1) shall be made in a case where compensation is payable under Clause (ii) of the proviso to Section 4 unless and until the amount of compensation so payable has been either paid to the Thika Tenant or deposited with the Controller.

And contended that no proceeding having been initiated by the landlord-owner for ejectment of Thika Tenant the Court could not have passed an order of ejectment in a suit for partition. I am not able to appreciate to contention inasmuch as Section 5 only relates to an ejectment proceeding. But in the instant case, after the appellants having acquired an interest in the joint family property by purchase, the only remedy available against them was to file a suit for partition:

Mr. Dasgupta white repelling this aforesaid contention has, however, submitted that the notice as laid down in Section 8 is for the benefit of the landlord, so that he could, find out a suitable tenant for future occupation of the demised premises. Thus, even in the absence of notice, if in fact, the tenant surrendered Thika Tenancy Right, such surrender will not be invalid on account of absence of notice. It is further argued that such absence of notice does not effect any public interest and may likely affect some private right, thereby, it cannot be said that such non-service of notice would render the factum of such surrender illegal vis-a-vis any Judgment passed thereto cannot also be held to be without Jurisdiction. To support his contention Mr. Dasgupta has relied upon a decision reported in (3) Dhirendra Nath Gorai and Subal Chandra Shaw and Others Vs. Sudhir Chandra Ghosh and Others, in the case of Dhirendra Nath vs. Sudhir Chandra.

We agree with this reasoning. Another Division Bench of the Calcutta High Court, consisting of Guha and Banerjee, JJ. in (4) Maniruddin Ahmed vs. Umaprasanna, 64 CWN 20; Maniruddin Ahmed Vs. Umaprasanna Mukherjee, considered the entire case law on the subject including the decision now under appeal, and differed from the view expressed by S.R. Das Gupta and Mallick, JJ., in the decision now under appeal and agreed with the view expressed by Akram and Chakravarti, JJ. in (5) 50 Cal WN 266. The said decisions are in accord with the view we have expressed earlier. The contrary view is sustained by the High Court in the present case on the principle that the sale held in contravention of the provision of Section 35 of the Act was a nullity and, therefore, no question of setting aside the sale within the meaning of Order XXI Rule 90 of the CPC would arise. This raises the question whether such a sate is a nullity-. If a provision of a statute is only directory, an act done in contravention of the provision is manifestly net a nullity. Section 35 of the Act is couched in a mandatory from and a casts in terms a duty on the Court to comply with its provisions before a sale is held. Prima facie the provision is mandatory at any rate, we shall assume it to be so for the purpose of these appeals.

It is difficult sometimes to distinguish between an irregularity and a nullity; but the safest rule to determine what is an irregularity and what is a nullity is to see whether the party can waive the objection; if he can waive it, it amounts to an irregularity; if he cannot it is a nullity.

As a general rule, the conditions imposed by statutes which authorise legal proceedings are treated as being indispensable to giving the Court jurisdiction. But if it appears that the statutory conditions were inserted by the legislature simply for the security or benefit of the parties to the action themselves, and that public interests are involved, such Condition will not be considered as indispensable, either party may waive them without affecting the jurisdiction of the Court.

Where the Court acts without inherent jurisdiction, a party affected cannot by waiver confer jurisdiction on it which it has not. Where such jurisdiction is not wanting, a directory provision can obviously be waived. But a mandatory provision can only be waived if it is not conceived in the public interest, but in the interests of the party that waives it. In the present case the executing Court had inherent jurisdiction to sell the property. We have assumed that Section 35 of the Act is a mandatory provision. If so, the question is whether the said provision is conceived to the interests of the public or in the interests of the person affected by the non-observance of the provision. It is true that many provisions of the Act were conceived in the interest of the public, but the same cannot be said of Section 35 of the Act, which is really intended to protect the interests of a judgment-debtor and to see that a larger extent of his property than is necessary to discharge the debt is not sold. Many situations may be visualized when the judgment-debtor does not seek to take advantage of the benefit conferred on him u/s 35 of the Act, for instance if the act of the property carved out by the Court in sale is separated from the rest of his property, the value of the remaining property may be injuriously affected by the said carving out, in which case the judgment-debtor may prefer to have his entire property sold so that he may realize the real value of the property and pay; part of the sale price towards the decretal amount. He cannot obviously be compelled to submit to the sale of a part of the property to his disadvantage. A provision intended for his benefit cannot be construed in such a way as to work to his detriment. But it is said that the proviso to Section 35 of the Act indicates a contrary intention. Under that proviso, "If the highest amount bid for the property so specified is less than the price so specified, the Court may sell such property for such amount, if the decree-holder in writing to forego so much of the amount decreed as is equal to the difference between the highest bid and the price so specified. This is only an option given to the decree-holder; he may exercise this option, if he does not tike to go through the entire sale proceedings over again. In one contingency this proviso also works for the benefit the judgment-debtor, for he will be relieved of part of his indebtedness. But anyhow this does not show that the main provision is not intended for the benefit of the judgment-debtor. We are therefore, satisfied on a true construction of Section 35 of the Act, that it is intended only for the benefit of the judgment-debtor and, therefore he can waive the right conferred on him u/s 35 of the Act.

On a careful reading of the aforementioned Supreme Court decision it is obvious that the affected party can waive notice and by such waiver it cannot be said that it has affected the public interest. Notice u/s 8 of Calcutta Thika Tenancy Act, 1949 by the tenant is only meant to give the landlord an opportunity to find out any other suitable tenant in the event of the tenant vacating the demised premises. Therefore, the landlord has every right to waive his notice and it cannot be argued that absence of such notice to the landlord would render the decree otiose. The notice is only for the benefit of private party without effecting public interest Therefore, non-compliance of these provisions can at the best be said to be directory and, therefore, such decree passed thereto cannot be said to be totally lack of jurisdiction. In the present case, the parties were conscious before going to trial about such surrender of tenancy. They further adduced documentary evidence on such issue. The Court after considering the pleading and evidence of the'' parties decided the issue in favour of the landlord. As such it cannot be said that the Court was bereft of jurisdiction to adjudge upon such issue.

The appellants have, however, complained that issue relating to surrender was recent on the date of hearing, therefore, the appellants who claimed Thika Tenancy Right did not have adequate opportunity to adduce evidence. I am at a loss to understand how such plea could be taken by them. In case the Court committed some mistake and/or even wrong findings, it was open to them to challenge those findings in appeal.

In fact, the appeal was filed but subsequently it was dismissed on account of abatement. Mr. Dasgupta the Learned Counsel has relied upon a decision reported in (6) Nagubai Ammal and Others Vs. B. Shama Rao and Others, :

We are satisfied that the defendants went to trial with full knowledge that the question of lis pendens was in issue had ample opportunity to adduce their evidence thereon and fully availed themselves of the same, and that in the circumstances the absence of a specific pleading on the question was a mere irregularity, which resulted in no prejudic to them.

It was argued for the appellants that as no plea of lis pendens was taken in the pleadings the evidence bearing on that question could not properly be looked into, and that no decision could be given based on Exhibit-J, series that the sale dated 30.1.1920 was affected by lis: and reliance was placed on the observations of Lord Dunedin in (7) Siddik Kahomed Shah vs. Mr. Saran, 1930 PC 57 (1) (AIR V 17) (A), that "no amount of evidence can be looked into upon a plea which was never put forward.

The appellants relied upon a decision reported in (8) Gopal Ch. Paul Vs. Smt. Amala Mondal, In the aforementioned single bench decision it is found the facts are quite distinguishable from the instant case. The case was governed by the provision of Thika Tenancy Act, 1949. By virtue of subsequent amendment in the year 1969 the Thika Tenancy Act was withdrawn from Garden Reach area with retrospective effect. Accordingly, the said are was governed by the Transfer of Property Act. In the above case, the trial Court passed a decree for eviction after passing of the Amendment Act that the tenancy was governed by the Transfer of Property Act which was affirmed in the second appeal. There were two amendments in the West Bengal Non-agricultural Tenancy Act, 1974 and 1980 which were applicable to the Garden Reach area. In view of the amendments all proceedings including the execution case were held to be ineffective and inoperative with retrospective effect notwithstanding any decision, decree or order to the contrary. Therefore, the Court held such decree was invalid. But the instant case is quite different. In the present suit for partition the preliminary decree was passed and neither party questioned the propriety of such preliminary decree.

A formidable point has been raised against the appellants by Mr. Dasgupta is that since the appellant; did not question against the preliminary decree and allowed it to be final, subsequently, it was not open to them to raise any dispute regarding the validity of the preliminary decree. In support of his submission, be placed reliance on Section 97 of the C.P. Code.

Section 97 : Where any party aggrieved by a preliminary decree passed after the commencement of this code does riot appeal front such decree, he shall be precluded from disputing its correctness in an appeal which may be preferred from the final decree.

On a careful reading of the provision, it appears that there is an embargo on the appellants to dispute the correctness of the preliminary decree in an appeal against the final decree. The appeal is a creature of statute and the scope of appeal is also limited by the Code itself. The respondents have relied upon a decision reported in (9) Venkata Reddi and Others Vs. Pothi Reddi,

A preliminary decree passed., whether it is in a mortgage suit or a partition suit not a tentative decree but must, in so far as the matters dealt with by it are concerned, be regarded as conclusive. No doubt, in suits which contemplate the making of two decree i.e. preliminary decree and final decree--the decree which would be, executable would be a final decree. But the finality of a decree a decision does not necessarily depend upon it being executable. The legislature in its wisdom has thought that suits of certain types would be decided in stages and though the suit in such cases can be regarded, as fully and completely decided only after a final decree made the decision of the Court arrived at the earlier stage also has finality attached to it. It would be relevant to refer to Section 97 of the CPC which provides that where a party aggrieved by a preliminary decree does not appeal from it he is precluded from disputing its correctness in any appeal which may be preferred from the final decree. This provision thus clearly indicates that as to the matters covered by it, a preliminary decree is regarded as embodying the final decision of the Court passing that decree.

It has been further argued relying on the basis of the decision reported in (10) Chitturi Subbanna Vs. Kudapa Subbanna and Others, in the case of Chittoori Subbanna v. Kudappa Subhanna and Ors. :

It is urged for the decree-holder respondent that the trial Court when passing the final decree, could not have ignored what had been decreed under the preliminary decree as no appeal against the preliminary decree had been preferred and Section 97 C.P.C. provided that where any party aggrieved by a preliminary decree passed after the commencement of the Code did not appeal from such decree, it would be precluded from disputing its correctness in any appeal which might be preferred from the final decree. The object of Section 97 is that questions which had been urged by the parties and decided by the Court at the stage of the preliminary decree will not be open for re-agitation at the stage of the preparation of the final decree and would be taken as finally decided if no appeal had been preferred against the preliminary decree.

Mr. Sahoo, the learned Advocate appearing for the appellants, has placed reliance on a decision reported in (11) Urban Improvement Trust, Jodhpur Vs. Gokul Narain and another, But the said decision has no relevancy in the present case. The appellant has then again relied upon a decision (12) Sabitri Dei and Others Vs. Sarat Chandra Rout and Others, On a careful reading of the Apex Court, it is indicated that such decision has hardly any application to the present case inasmuch as the relief claimed in the above suit was already barred u/s 39 of the Orissa Estates Abolition Act, 1951. Therefore, the Apex Court had taken such view that where the decree is itself a nullity, the propriety of the same even can be challenged in execution u/s 47 of the C.P.C. Such analogy cannot be stretched to the present case. The appellant then relied on a judgment reported in (13) Mool Chand and others Vs. Dy. Director, Consolidation and others, where it has been held that once a preliminary decree is passed determining the rights of the parties, the final decree would only work out these rights which have been directed in the preliminary decree. Failure to appeal against the preliminary decree would operate as a bar to agitate in appeal filed against final decree. Therefore, in the above circumstances I do not find how the decision cited supra has supported the appellant''s case.

Mr. Sahoo has fervently pleaded by placing reliance on a decision reported in (14) Narayan Vishnu Hendre and others Vs. Baburao Savalaram Kothawale since deceased by his heir Anant Baburao Kothawale, On a careful reading of the judgment it appears that the case referred above are distinguishable on facts. In the above-mentioned case, the parties had questioned the decree itself before the Supreme Court but not in a subsequent suit. Moreover, surrender alleged to have been made by the appellants was under Calcutta Thika Tenancy Act, 1949 which was accepted by the Trial Court. The question of surrender is a factual plea which the Trial Court has already held in favour of the plaintiffs, the same cannot be re-opened in the final decree proceeding. Assuming the appellants were Thika Tenants but for last so many years admittedly they have not been paying rent to the land-holder. The rent receipts filed in this Court was also without prejudice and patently those receipts are during the pendency of the appeal, thus, no credibility could be attached on those receipts. The appellants have not challenged regarding division of property by the Partition Commissioner nor about the share allotted to the parties Therefore, those questions need not be discussed at length.

In the above conspectus of the case, after careful cogitation, I found there is no merit in this appeal and the same is accordingly, dismissed but in the circumstances without cost. The final decree passed by the Trial Court which was affirmed by 1st appellate Court are hereby upheld.