TMI Blog1907 (8) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... he Transfer of Property Act have been contravened. But after confirmation, the sale can only be avoided by an application under sec. 244, provided that the applicant proves that owing to fraud or other reasons he was kept in ignorance of the sale proceedings and the proceedings preliminary to sale. 2. The case should, therefore, be remanded to the Subordinate Judge to be disposed of after enquiry into these matters and after decision of any other issues that may arise in the case. The costs will abide the result. The hearing fee is fixed at ten gold mohurs. 3. It seems neither necessary nor advisable for us to answer the second question put by the Referring Bench. Cecil Michael Wilford Brett, J. I agree. Mitra, J. I agree. J.G. Wooddroffe, J. I agree. Mookerjee, J. 4. The questions which have been referred for decision to this Bench are as follows:-(1) whether, when a sale has been held in contravention of the provisions of sec. 99 of the Transfer of Property Act, the sale is a nullity or an irregular or voidable sale; (2) whether the right of redemption of the mortgagor is or is not affected by such sale. 5. Sec. 99, upon the construction of which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as they affirmed the principle that a suit is necessary to enforce the mortgage or charge before the holder thereof can sell the property and obtain satisfaction of money decree held by him. 6. The substance of the section, therefore, is that when the mortgagee has, in execution of money decree against the mortgagor, effected an attachment of the mortgaged property, he cannot proceed to sell it; he must bring a suit upon the mortgage against all the parties interested in the equity of redemption, and the decree in such suit should be, not for the sale of the equity of redemption but for the sale of the property, free from the mortgage claim of the Plaintiff, and the sale-proceeds should be applied, in the first instance, to the discharge of the mortgages on the property, in the order of their priority, and the surplus, if any, towards the satisfaction of the Plaintiff's claim under the attachment, so far as may be necessary. If this, then, is the true scope and meaning of sec. 99, the question next arises as to the precise effect of the violation of its provisions. Upon this question, there has been, as will presently appear, considerable divergence of judicial opinion. But ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r affected his rights in the property. In other words, the purchaser acquires no title under the sale, which he can enforce as a Plaintiff Or set up in defence when he is attacked, and it makes no difference whether he is the mortgagee or a stranger to the proceedings. To this class of cases belong Sathuvayyan v. Muthusami I. L. R. 12 Mad. 325 (1888), Durgayya v. Anantha I. L. R. 14 Mad. 74 (1890), Sheodeni v. Ram Saran I. L. R. 26 Cal. 164 (1898), Moti Ram v. Ram Lakhan 3 C. W. N. 290 (1898), Shibdass v. Kali Kumar I. L. R. 30 Cal. 463 (1903), Basiruddi v. Kailas Kamini I. L. R. 33 Cal. 113 (1905), Jagannath v. Budhwa 7 Punj. L. R. No. 157, p. 516 (1906) and the case of Husein v. Shankar Giri I. L. R. 23 Bom. 119 (1898) seems to support the same view by implication. 8. In the second class of cases it has been ruled, that a sale in execution of a money-decree in contravention of sec. 99, is an illegal sale, which requires to be set aside in order that it may cease to be operative. To this class belong the cases of Vigneswara v. Bapayya I. L. R. 16 Mad. 436 (1893), Mayan Pathuti v. Pakuran I. L. R. 22 Mad. 347 (1898, Muthuraman v. Ettappasami I. L. R. 22 Mad. 372 (1899), Thaleri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciple. The determination of this question must depend upon the nature of the rule embodied in that section. If it be held that a sale held contrary to the provisions of sec. 99 is a sale absolutely without jurisdiction it may be treated as a nullity, or if it be held that a sale so held, is in contravention of public policy, the same conclusion might follow. If, on the other hand, it was held, that the object of the legislature was to afford protection to the individual litigant, he might clearly waive the benefit thereof. In this latter view, he might by pursuit of the appropriate remedy at the proper stage of the proceedings, avail himself of the protection afforded by the statute, or he might, by reason of his omission to do so, lose the benefit thereof. Before, however, we examine the principle of the rule embodied in sec. 99, it is necessary to deal with an extreme contention of the Respondent, namely, that, as a sale in contravention of sec. 99 is a sale prohibited by the statute in the most emphatic terms, it must necessarily be treated as a nullity. This broad contention is supported by neither principle nor authority. It cannot be affirmed as a. proposition of law of unive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of no avail or effect whatever, or is void and incapable of being validated. It may be conceded, that the application of this doctrine to an individual case, may sometimes be attended with difficulty. One test, however, is well established, and is often useful; as was observed by Mr. Justice Coleridge in Helm's v. Russel 9 Dowl. 487 (1841) 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. To the same effect are the observations of Mr. Justice Taunton in Garratt v. Hooper 1 Dowl. 28 (1831). We shall now consider in the light of these principles, whether a sale held contrary to the provisions of sec. 99 may rightly be regarded as a nullity. It was argued by the learned vakil for the Respondent that a sale of this description is without jurisdiction and consequently null and void. In my opinion, this contention is founded upon a misconception of what is indicated by the jurisdiction of a Court, the nature of which is explained in the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rly be treated as absolutely null and void, as if it were a sale held without jurisdiction. 11. It was next argued by the learned vakil for the Respondent that the language of sec. 99, which expressly prevents the mortgagee from selling the mortgaged property, in execution of a money-decree, is mandatory, and that a sale, in violation of that section, ought to be treated as a nullity. It is well settled, however, that no general rule can be laid down as to whether a provision in a statute is absolute or directory. It was ruled by Lord Campbell, L. C, in Liverpool Borrough Bank v. Turner 30 L. J. Ch. 379 (1860) that no universal rule can be laid down as to whether a mandatory enactment shall be considered directory only, or obligatory, with an implied nullification for disobedience: it is the duty of Courts of Justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be construed. To the same effect, are the observations of Lord Penzance in Howard v. Bodington 2 P. D. 203 (211) (1877) and of Griffith, C. J., in Chanter v. Blackwood 1 Com. L. R. 39 at p. 51. When the object of the statute has been determined, if th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charge the incumbrance, there might be great hardship upon him unless he was afforded the benefit of the doctrine of estoppel [Muhammad v. Shib Sahai I. L. R. 21 All. 309 (1899)]. Reference may also be made to the cases of Govind v. Pareshram I. L. R. 25 Bom. 161 at p. 167 (1900), Lachmi Narain v. Nand Kishore I. L. R. 29 Cal. 537 at p. 543 (1902) and to the observations of Dr. Whitley Stokes in his Anglo-Indian Codes, Vol. I, page 734, where the object with which sec. 99 was enacted, is explained. It may be a matter for controversy whether, if regard be had to the decisions in Emam Momtazuddin v. Raj Coomar 23 W. R. 187 (1875) and Bhuggobutty v. Shama Churn I. L. R. 1 Cal. 337 (1876) the evil which the Legislature had apparently in view, had any real existence; and if so, whether a drastic provision of this character was required to realise the object in view. The enquiry is foreign to our present purpose: this much is beyond controversy that the main object of sec. 99 was to afford protection to the owner of the equity of redemption. It is sufficient to refer to the judgment of Phear, J., in Brajanath v. Gobinda Mani 4 B. L. R. (O. C.) 83 (1869) of Norman, J., in Ram Lochun v. Ka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sses of cases indicate that his remedies are twofold; he may either seek to set aside the sale, or he may seek to redeem the property. If he adopts the former alternative, it is reasonably clear, that he ought to proceed by way of an application under sec. 244, C. P. C, to set aside the sale, and not by way of a regular suit. The question of the validity of the sale is clearly a question relating to the execution or satisfaction of the decree, and it is a question which arises between the parties to the suit or their representatives: an application for reversal of the sale is, therefore, the proper procedure. But up to what stage of the proceedings, is such an application permissible? Obviously it ought not to be allowed after the sale has been confirmed, that is, has become final and conclusive, unless the applicant establishes that, by reason of fraud or otherwise, he had no notice of the sale or of the proceedings which led up to it. There is, indeed, one case Thaleri v. Thandora 10 M. L. J. 110 (1899) in which it was held that an application for reversal of the sale ought not to be allowed at all, if the judgment-debtor had notice of the sale, and could have prevented it by app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore the sale, but surely, after the sale and before confirmation, he ought to decide whether he will adopt it or challenge its validity. This view is supported by the cases of Modern v. Jamna 2 A. L. J. R. 123 (1898) and Mangli Prasad v. Pati Ram 1 A. L. J. R. 360 (1904). If, therefore, with full knowledge of the sale, he allows it to be confirmed, he may be taken to have waived the objection. If, on the other hand, the sale has been held, and the confirmation obtained without his knowledge, he is entitled, even after confirmation, to apply for reversal of the sale. Under such circumstances, the confirmation would not be a bar. [See Durga Charan v. Kali Prasana I. L. R. 26 Cal. 727 (1899), Set Umedmal v. Sri Nath Ray I. L. R. 27 Cal. 810 (1900), O'Connor v. Richards Sausse Scully 246, Alven v. Bond Fla. Kel. 196 and Watson v. Birch 2 Ves. 51 (1793)]. But whether the application is made before or after the sale the only element which it is necessary for the owner of the equity of redemption to prove to obtain a reversal of the sale, is that sec. 99 has been contravened. It is not necessary to prove any irregularity or substantial injury, as would be requisite in a case unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to pursue this line of enquiry further, which can properly arise only in a suit for redemption; but I observe that in Muthu v. Karuppan 17 M. L. J. R. 163 (1907) the learned Judges of the Madras High Court have held that, when the purchaser happens to be not the mortgagee but a stranger, the only course open to the mortgagor is to have the sale set aside by an application under sec. 244, C. P. C., and he cannot maintain an action for redemption as against the mortgagee and the purchaser at the execution sale. In such a case, if the sale is not reversed, it is the purchaser who becomes the owner of the equity of redemption, and who would be entitled to redeem the mortgage. 15. The answers, therefore, which I would give to the questions referred to the Full Bench are as follows: When a sale has been held in contravention of the provisions of sec. 99 of the Transfer of Property Act, the sale is not a nullity; it is an illegal and voidable sale; it may be set aside by an application under sec. 244 of the Civil Procedure Code, at any time before it has been confirmed: it may also be set aside by similar application after confirmation, if the applicant proves that he had no notic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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