Meredith, J.:— This second appeal is by the judgment-debtor, A money decree had been obtained against the appellant and his father and in November, 1938, the appellant was substituted for his father in the execution proceedings. Four houses of the judgment-debtor were attached. Sale proclamation was issued on the 5th May, 1939, and the property was eventually sold on the 19th January, 1940. It was purchased by the decree-holder himself for a sum of Rs. 2,001 and the decree was satisfied.
In November, 1938, an objection under section 47, Civil Procedure Code, had been filed by the judgment-debtor. On the 10th July, 1939, the date originally fixed for the sale, there was a compromise where under the judgment-debtor was given six months to pay up the decretal amount. The sale was adjourned for six months and the judgment-debtor waived his right to make any objection regarding the issue of fresh sale proclamation.
The case came up for orders on the 10th January, 1940, on expiry of the six months, in the absence of the judgment-debtor. The decretal dues had not been paid; the sale was therefore fixed for the following day, the 11th. On that day, however, it was further adjourned until the 12th. On the 12th there were no bidders and a further adjournment was then made until the 19th on which date, as I have said, the sale took place. On none of these dates was the judgment-debtor present, but on the 2nd April, 1941, considerably more than thirty days after the sale, the appellant filed the objection which has given rise to the present appeal. The objection was labelled as being under sections 47 and 151, Civil Procedure Code, and it was contended that the sale was void as the Court had not complied with the mandatory provisions of section 13 of the Bihar Money-Lenders (Regulation of Transactions) Act, 1939, which provides, inter alia, that the Court shall before holding the sale hear the parties to the decree and estimate the value of the property and of that portion of such property the proceeds of the sale of which it considers will be sufficient to satisfy the decree.
This application succeeded before the trial Court and the sale was set aside. On appeal to the learned District Judge, however, the latter held that the sale was not bad because the judgment-debtor must be taken to have waived his right to have the property valued under section 13, and because the application, though labelled as under section 47, really fell, in the opinion of the District Judge, within the provisions of Order XXI, rule 90, Civil Procedure Code, and as the objection could have been taken before the sale, an application putting it forward after the sale must fail.
It is argued by Mr. Bhuvaneshwar Prasad Sinha for the appellant, in the first place, that section 13 of the Money-Lenders Act casts a statutory duty upon the Court. There can, therefore, be no question of waiver, since no waiver by a party can release the Court from its duty under the law. Secondly, Mr. Sinha points out that the sale was adjourned for much more than the fourteen days contemplated under the provisions of Order XXI, rule 69. The judgment-debtor consented only to waive a fresh sale proclamation upon adjournment for six months. But there was adjournment for more than that period and the adjournment for the excess over six months was not by consent of parties. On this ground also he contends that the sale was bad.
There is certainly substance in the first of these contentions, but Mr. Sinha was met with the argument that the application was out of time. The application was not made until nearly three months after the sale had taken place. The period of limitation for an application to set aside a sale is fixed at thirty days by Article 166 of the Limitation Act.
Mr. Sinha has sought to avoid this difficulty by contending that this is a case where the sale is a complete nullity. It does not need to be set aside. All that is necessary is a declaration that it is of no effect. The application, therefore, cannot be treated as one to set aside a sale within the meaning of Article 166 and as regards limitation will be governed by the residuary Article 181 and as such is within time.
Undoubtedly under the provisions of section 13 of the Money-Lenders Act the Court is not entitled to hold a sale without previously valuing the property, and non-compliance with this provision would be a good ground for setting the sale aside. But that is only to say that it is voidable, not that it is void. It is one thing to held that the sale is bad on this ground and another thing to hold that it is completely without jurisdiction, so that it can be ignored without being set aside. In my opinion there is nothing in the provisions of section 13 to support the argument that failure to value the property goes to the root of the Court's jurisdiction to hold the sale, so as to make it a complete nullity. My attention has been drawn to a decision of my own in Lal Bahadur Singh v. Bishunath Prasad Singh, disposed of on the 17th November, 1941, and also to a decision of a Division Bench of this Court in Gunjari Mahatani v. Nil Kamal Pande. Neither of those cases, however, goes so far as holding that a sale without fixing the valuation is a complete nullity.
Mr. Sinha has relied upon a number of decisions in which it has been held that failure to comply with the provisions of Order XXI, rule 22, Civil Procedure Code, and to issue the notice prescribed by that rule, renders the sale completely void. These decisions are all based upon a decision of the Privy Council, Raghunath Das v. Sundar Das Khetr. All of them must, in my opinion, be taken as having reference only to the particular provisions of Order XXI, rule 22, Civil Procedure Code. There is an analogy undoubtedly between the wording of Order XXI, rule 22, and section 13 in so far as both contain mandatory provisions; but the analogy is not complete, and it cannot be held that simply because it has been laid down that for non-compliance with Order XXI, rule 22, the sale is a nullity it necessarily follows that the sale is a nullity for non-compliance with the provisions of section 13 of the Money-Lenders Act.
Illegal the sale may have been, in the limited sense that it was held in a manner at variance with at mandatory statutory provision. That provision, however, has no reference at all to the jurisdiction of the Court. It affords no foundation for the contention that the sale was one which the Court concerned had no power at all to hold. The view that the considered orders of a legally constituted Court, in regard to subject matter within its jurisdiction and competence, can be treated as nullities and ignored, without first being set aside, is not one to be encouraged.
As for Mr. Sinha's contention with regard to Order XXI, rule 69, that raises several difficult questions which it is unnecessary to decide. It is enough to say that, even less than in the case of section 13, Money-Lenders Act, can it fairly be argued that a breach of its provisions involves any question of jurisdiction.
In my opinion the application in the present case must be treated as an application to set aside the sale. As such it was out of time. The order of the learned District Judge must, therefore, be upheld and I would accordingly dismiss this appeal with costs.
Fazl Ali, J.:— I agree.
S.A.K
Appeal dismissed.