Rampini, C.J, and Sharfuddin, J.:— This is an appeal by a decree-holder and auction-purchaser at a sale of certain holdings held in execution of decrees obtained by him for rent. It appears that he had a mortgage on the lands sold, and hence the lower. Courts have decided that the sale at which he purchased was a nullity, having taken place in contravention of the provisions of sec. 99 of the Transfer of Property Act.

The grounds of appeal urged are: (1) that the sale is not a nullity, as it was duly confirmed; (2) that the application under sec. 244, Civil Procedure Code, to set aside the sale was made long after the confimation of sale; and (3) that the judgment-debtor's remedy lay in a separate suit and not in an application under sec. 244, Civil Procedure Code.

There can be no doubt that according to a long series of rulings (viz., Sathuvayyan v. Muthusami(16), Durgayya v. Anantha(17), Vigneswara v. Bapayya(24), Sheodeni Tewari v. Ram Saran Singh(18), Shibdass Dass v. Kali Kumar Rai(20), Basiruddi v. Kailas Kamini Devi(21) and Sonu Singh v. Behari Singh(30), the sale having taken place in contravention of the terms of sec. 99 of the Transfer of Property Act is a nullity. In other cases, viz., Chundra Nath Dey v. Buroda Sundari Ghose(8), Aubhoyessury Debi v. Gouri Sunker Pandey(9), Matangini Dasi v. Chooney Money Dasi(6), Lachmi Narain Singh v. Nand Kishore Lal Das(7), Tokhan Singh v. Girwar Singh(11) and Hemban v. Bihari Gir(12), which are not directly in point, because in these cases no sale actually took place, the principle has been laid down that a sale so held is null and void. The learned pleader for the Appellant, however, contends that these rulings have all been impliedly set aside by, or are contrary to the views of their Lordships of the Privy Council in Khiarajmal v. Daim(1). The Appellant's pleader specially relies on the passage which occurs in that judgment to the effect: “The Judge has made a decree for redemption of the whole estate on the ground that ‘the mortgagees could not acquire the equity of redemption directly or indirectly by purchase at a Court sale, except by a suit brought on the mortgage on account taken and time specially allowed for redemption.’ Their Lordships cannot concur in this view which they think is based on a misapplication of a sound principle of equity. Their Lordships throw no doubt on the principle which has been acted on in many cases in India, that a mortgagee cannot by obtaining money-decree for the mortgage debt, and taking the equity of redemption in execution relieve himself of his obligations as mortgagee, or deprive the mortgagor of his right to redeem on accounts taken, and with the other safeguards usual in a suit on the mortgage. But in Waliram's suit the parties agreed that the points in issue in the suit should be referred to arbitration, and the case was taken out of the hands of the Court. In suit No. 160 of 1878 the debt sued for was not the mortgage debt. The creditors were different and the debtors were different, and the debt does not appear from the plaint to have been secured by a mortgage. In any case the point taken by the Appellate Judge would not be a cause of nullity for want of jurisdiction, but a case of irregularity in procedure only.”

This decision of their Lordships of the Privy Council was followed in Muhammad Abdul Rashid Khan v. Dilsukh Bai(29), and is afforded some support by the decision of the Judges of the Madras High Court in Mayari Pathuti v. Pakuran(25) in which it was decided that such a sale was not void but voidable only.

It would seem to us that there is much force in this plea of the Appellant. It may be true, as pointed out by the Subordinate Judge that the facts of the case of Khiarjmal v. Daim are different from those of the present—and that the mortgage bond in that suit was executed before the passing of the Transfer of Property Act: but the learned Judges of the Privy Council seem to us to lay down the general principle that “the doctrine given effect to by the Courts in India that mortgagees cannot acquire the equity of redemption directly or indirectly by purchase at a Court sale except by suit brought upon the mortgage is based upon a misapplication of the sound principle of equity that a mortgagee cannot in this way relieve himself of his obligations as a mortgagee or deprive the mortgagor of his right to redeem.” Their Lordships of the Privy Council go on to observe that “in any case the point taken would not be a cause of nullity for want of jurisdiction but a cause of irregularity in procedure only.” Hence it would seem to follow that a sale held in contravention of the provisions of sec. 99 of the Transfer of Property Act is not a nullity, but is a sale irregular in procedure only, and that its effect is not to deprive the mortgagor of his right to redeem, but that such right will subsist.

In these circumstances we are of opinion that the sale in this case was not a nullity, or absolutely void, but merely a sale subject to the defect of irregularity in procedure, which can consequently only be set aside on the ground of substantial injury resulting therefrom, which in this case is neither proved nor alleged.

But the case of Khiarajmal v. Daim is not directly in point, because the bond and the sale in execution of the decree obtained on that bond are of date anterior to the passing of the Transfer of Property Act. Moreover two of the cases of this Court, viz., Basiruddi v. Kailas Kamini Debi and Sonu Singh v. Behari Singh, are of date subsequent to the decision of the case of Khiarajmal v. Daim, and cannot therefore strictly speaking be regarded as overruled by that decision though they have, it would appear to us, been decided on a principle contrary to that therein laid down by their Lordships of the Privy Council. We consequently consider it our duty to refer this important question on which there would seem to us to be conflict of authority and in respect of which we consider the cases above cited as being directly in point have been wrongly decided—to a Full Bench, which we accordingly do, and the questions on which we would invite an expression of the opinion of the Full Bench are:—

(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 and voidable sale, and

(2) Whether the right of redemption of the mortgagor is or is not affected by such sale.

In these circumstances we do not need to discuss the Appellant's other pleas. We may observe, however, that it would seem to us that his plea that the sale cannot be set aside by an application under sec. 244, though supported by the Madras High Court ruling in Mayan Pathuti v. Pakuran, must fail in the face of the ruling of this Court in Durga Charan Mandal v. Kali Prasana Sarkar(67), and of that of the Allahabad High Court: in Gaya Prasad Misser v. Randhir Singh(77).

Babu Surendra Nath Ghoshal—Reads sec. 99, Transfer of Property Act. It is only a section about procedure and does not deal with substantive rights. Referred to Muhammad Abdul Rashid Khan v. Dilsukh Rai, Mayan Pathuti v. Pakhuran. See Kokil Singh v. Edal Singh(78), mere non-compliance with a certain procedure is an irregularity and not an illegality. Sheodeni Tewari v. Ram Saran, Basiruddi v. Kailas Kamini Devi, Ghose's Mortgage, observation upon sec. 99 of the Transfer of Property Act.

Babu Shib Chandra Palit.—The sale is a nullity. Sec. 99 says—the mortgagee ‘shall not be entitled’ and therefore, when the sale is held in contravention of sec. 99, the sale is no sale at all.

[Brett, J.—In that case the Privy Council case goes for nothing].

Jadub Lall v. Madhub Lall(2), followed in Govinda Bhatta v. Narain Bhatta(5), see Bank of England v. Vagliano(79), as to construction of statute. Subramaniya Ayer, J., after deciding the case in Mayan Pathati v. Pakuran changed his views shortly afterwards. See Muthurannan v. Ettappuami(26). In Muhammad Abdul Rashid Khan v. Dilsukh Rai, there is a difference of opinion between the Judges. This case follows the Privy Council case. Refers to Hemban v. Bihari Gir.

[Mookerjee J.—Referred to Martand v. Dhondo(33)].

Refers to Nannu Vien v. Muthusami(35), Govinda Bhatta v. Narain Bhatta, Tokhan Singh v. Girwar Singh. The observations on the last are in my favour. Shibdass Dass v. Kali Kumar Rai. Then the two cases Basiruddi v. Kailas Kamini Devi, Sonu Singh v. Behari Singh are in my favour.

As to Muhammad Abdul Rashid Khan v. Dilsukh Rai relied upon by the other side he reads passage from p. 524 beginning with “Independently of the provisions contained in sec. 99 of the Transfer of Property Act,” &c.

If the sale is held to be not void but voidable, then I am the person who can avoid it and I have nothing more to show than that this sale is in contravention of the express provisions of sec. 99.

[Rampini, C.J, draws his attention to sec. 17 of the Revenue Sale Law.]

Operation of sec. 17, Revenue Sale Law, different. That section deals with substantive right and sec. 99, Transfer of Property Act, deals with procedure. In sec. 17 the sale is by an official and in sec. 99 of the Transfer of Property Act the sale is by a private individual.

Babu Surendra Nath Ghoshal in reply referred to Mayan Pathuti v. Pakuran, Eruppa v. Commercial and Land Mortgage Bank(34), Thaleri Pathumma v. Thandoru Mammad(27).

The Judgment of the Full Bench was as follows:

Rampini, C.J— The questions referred to us are:—

(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 and voidable sale, and (2) whether the light of redemption of the mortgagor is or is not affected by such sale?

In answer to the first question I think we must after the expression of opinion of their Lordships of the Privy Council in Khiarajmal v. Daim reply that a sale held in contravention of the provisions of sec. 99 of the Transfer of Property Act is not a nullity, but an irregular and voidable sale. In my opinion such a sale can be avoided before confirmation of sale by an application under sec. 244, Code of Civil Procedure, without its being necessary for the applicant to show more than that the provisions of the 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.

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.

It seems neither necessary nor advisable for us to answer the second question put by the Referring Bench.

Brett, J.— I agree.

Mitra, J.— I agree.

Woodroffe, J.— I agree.

Mookerjee, J.— 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.

Sec. 99, upon the construction of which the answer to these questions must primarily depend, provides as follows: “where a mortgagee, in execution of a decree for the satisfaction of any claim, whether arising under the mortgage or not, attaches the mortgaged property, he shall not be entitled to bring such property to sale, otherwise than by instituting a suit under sec. 67, and he may institute such suit notwithstanding any thing contained in the Code of Civil Procedure, sec. 43.” It is to be observed, in the first place, that the terms of the first portion of the section are very wide. The mortgagee is prevented from bringing the mortgaged property to sale in execution of a decree for the satisfaction of any claim, related or extraneous to the mortgage. The obvious intention of the section is to prevent the mortgagee from executing a money decree against the mortgaged property, so as to deprive the mortgagor of his right of redemption. In the second place, it is to be observed that, under the section, the only mode in which the mortgagee may bring the mortgaged property to sale is by the institution of a suit under sec. 67 of the Transfer of Property Act. At one time, some doubt appears to have been entertained as to the precise scope of the suit which the mortgagee was thus required to institute under sec. 67. Reference may be made to the decision of this Court in Jadub Lall v. Madhub Lall in which it appears to have been argued, that the suit contemplated might be based on the charge created by the attachment founded on the money decree. The contention, however, did not find much favour with the Court, and has been subsequently negatived, both in Allahabad and in Madras. Thus in Azimullah v. Najmunnissa(3), the learned Judges of the Allahabad High Court held that the suit which the mortgagee is required to institute by sec. 99 is a suit under sec. 67, to enforce the mortagage, and not a suit on the charge created by the attachment. To the same effect is the decision in Mahabir Singh v. Saira Bibi(4) and a similar view was Recently adopted by the learned Judges of the Madras High Court in Govinda Bhatta v. Narain Bhattu. To this class the cases of Matangini v. Chooney Money and Lachmi Narain v. Nand Kishore may be taken to belong, 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.

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 before the authorities are reviewed, it is desirable to observe that, upon one preliminary point, there is no difference of opinion. It has been uniformly held, that if a mortgagee in execution of a decree for money, seeks to sell the mortgaged property, in contravention of the provisions of sec. 99, and if objection is taken before the sale, by the holder of the equity of redemption, the objection must be allowed, and the sale prevented. To this effect are the decisions in Chundra Nath v. Buroda Sundari, Aubhoyessury v. Gouri Sunder, Rai Ramana v. Surendra Nath(10), Tokhan Singh v. Girwar Singh, Hemban v. Bihari Gir, Madho Pershad v. Baij Nath(13), Ka???ri v. Ananthayya(14) and Kaji Inns v. Kaji Inus(15). The view taken in these cases is unquestionably right, for, if the object of sec. 99 of the Transfer of Property Act is to render it impossible that there should be a sale of the mortgaged property, save by the institution of a suit under sec. 67, the provisions of the section would be rendered absolutely nugatory, if objection taken before the sale by a person interested in the equity of redemption was not allowed to prevail. The Court will not allow the mortgagee to act in defiance of the provisions of the statute, and will not hold a sale at his instance in contravention of the law, if it is apprised of the fact before the sale has taken place. The only question is, what is the effect of the sale if it has actually taken place, and how does it affect the position of the parties. Upon this matter, judicial opinion has been widely divergent.

The cases on the subject, when analysed and classified, will be found to fall into three divisions. In the first class of cases, it has been held, that a sale of the mortgaged property by a mortgagee in execution of a money-decree in contravention of the provisions of sec. 99, passes no title whatever to the purchaser. In this class of cases, it has been ruled that, as the sale is a nullity, it is not necessary for the person interested in the equity of redemption to take any objection to the sale, or to have it set aside, but he may proceed on the assumption that the sale has not in any manner 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, Durguyya v. Anantha, Shevdeni v. Ram Saran, Moti Ram v. Ram Lakhan(19), Shibdags v. Kali Kumar, Basiruddi v. Kailas Kamini, Jagannath v. Budhwa(22), and the case of Hussein v. Shankar Giri(23) seems to support the same view by implication.

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 Vigneurara v. Bapayya, Mayan Pathuti v. Pakuran, Muthuraman v. Ettappasami, Thaleri Pathumma v. Thandora Mammal, Tara Chand v. Imdad Husein(28), Muhammad Abdul Rashid v. Dilsukh, Sonu Singh v. Bihari Singh, Tangutoori v. Molakalapalli(31) and Badeo v. Arjun(32). But although these decisions are founded on the common ground, that the sale is not a nullity and is merely voidable because illegal, they do not indicate the same mode for reversal of the sale; some of the cases seem to assume that a regular suit may be maintained for the purpose, others assume that the appropriate procedure is by way of an application under sec. 244 of the Civil Procedure Code, while the case of Thaleri Pathumma v. Thandora Mammad undoubtedly implies that an application under sec. 244, C.P.C, is available to the mortgagor, only if he can establish, that he was not aware of the impending sale before it took place, and was consequently unable to prevent it by a suitable objection in time. Apart from this difference, however, these cases proceed on the common ground, that the sale is not without jurisdiction and is not null and void.

In the third class of cases it has been ruled, that a sale held contrary to the provisions of sec. 99 is not a nullity, and that though voidable, yet even if it is not formally annulled, it does not affect the right of redemption of the mortgagor. To this class belong the cases of Martand v. Dhonda, Erusappa v. Commercial and Land Mortgage Bank, and the same principle was explicitly recognised in the cases of Mayan Pathuti v. Pakuran, Nannu Vien v. Muthusama and Khiarajmal v. Daim. The last two cases, however, were decided independently of the provisions of the Transfer of Property Act, which were not applicable to the transactions in dispute in these litigations: these two cases, therefore, cannot be relied upon as direct authorities upon the matter now in controversy.

The question which now requires con sideration is, whether the view indicated in the first class of cases, namely, that a, sale held contrary to the provisions of sec. 99 is a nullity, is well-founded on reason and principle. 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 folow. 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 universal application that non-compliance with every provision of the law makes the proceedings a nullity. (See the observations of this Court in the orders of Reference to a Full Bench in Sukhlal Seikh v. Tarachand Ta(36) and Khosh Mahomed v. Nazir Mohammad(37). Reference may also be made to five decisions of their Lordships of the Judicial Committee in illustration of this position. The cases of Tassaduk Basul Khan v. Ahmad Husain(38) (where a sale had been held in violation of the provisions of sec. 290 of the Civil Procedure Code), Gobind Lal Roy v. Ram Janam Misser(39) (where a sale for arrears of revenue was held in contravention of the provisions of secs. 55 and 17 of XI of 1859) and Malkarjun v. Narhari(40) (where a sale was held contrary to the provisions of sec. 248 of the Civil Procedure Code), amply show that there may be cases in which the violation of an express provision of a statute may not nullify the proceedings. On the other hand, the cases Nusserwanjee v. Meer Mynoodeen(41) (where an arbitration proceeding was carried on contrary to the provisions of the Bombay Reg. VII of 1827) and Subramania Ayyar v. King-Emperor(42) (where a trial was held in contravention of the rule of joinder of charges embodied in sec. 234 of the Criminal Procedure Code), afford illustrations of cases in which failure to comply with the provisions of a statute may completely vitiate the proceedings. The only rule, therefore, that may be adopted is that, when the provision of a statute has been contravened, if a question arises as to how far the proceedings are affected by such contravention, it must be determined with regard to the nature, scope, and object of the particular provision which has been violated. As pointed out in Macnamara on Nullities and Irregularities, no hard and fast line can be drawn between a nullity and an irregularity; but this much is clear, that an irregularity is a deviation from a rule of law which does not take away the foundation or authority for the proceeding, or apply to its whole operation, whereas a nullity is a proceeding that is taken without any foundation for it, or is so essentially defective as to be 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 Holmes v. Russel(43) “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(44). 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 order of reference, in the case of Sukh Lal v. Tarachand, and in the judgment of this Court in the case of Gurdeo Singh v. Chandrikah Singh(45). When a mortgagee in execution of a money-decree against the mortgagor has effected an attachment of the property comprised in his security, he has a twofold claim enforceable thereupon, namely, one under the attachment, and the other under the mortgage. All that sec. 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. Sec. 99 only prescribes the mode in which such power is to be exercised. When a sale is, therefore, held in contravention of sec. 99 the Court cannot be said to exercise a jurisdiction which it does not possess; it can almost be said to assume and exercise, in an irregular manner, the jurisdiction which it possesses. The defect, therefore, is one which is curable by consent or waiver. As observed in the cases of Ledgard v. Bull(46), Golab Sao v. Chawdhuri Madho Lal(47) and Gurdeo Singh v. Chandrikah Singh, it is only where a Court lacks inherent jurisdiction over the subject-matter of the proceeding or action, in which an order is made or a judgment rendered that such order or judgment is wholly void, with the result that the order may be shown to be a nullity, in any proceeding where reliance is placed upon it, although no formal and direct proceeding has been taken to have it vacated or reversed. To such a case, the maxim applies that consent cannot give jurisdiction. But these principles have no application, where the Court possesses inherent jurisdiction, over the subject-matter, and merely assumes or exercises that jurisdiction in an irregular or illegal manner; the objection in such a case may be waived, and may, in general, be assumed to be waived, when not taken at the time the exercise of jurisdiction is first claimed to the knowledge of the party affected. These principles make it manifest that a sale held contrary to the provisions of sec. 99, cannot properly be treated as absolutely null and void, as if it were a sale held without jurisdiction.

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(48) 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 Legistature 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(49) and of Griffith, C.J, in Chanter v. Blackwood(50). 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 class of persons, the conditions prescribed by the statute are not considered as indispensable and may be waived, beacuse every one has a right to waive, and to agree to waive the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity, and which may be dispensed with without infringement of any public right or public policy. This rule is expressed by the maxim of law, quilibet potest renuncare juri pro se introducto; any one may renounce a law introduced for his own benefit [Broome's Maxims, 7th Ed., page 531 and Hughes on Procedure, Vol. I, page 353, Ramsay v. N.E.R Co.(51), Calcdonian R. Co. v. Lockhart(52)]. As was pointed out by Lord Westbury in Hunt v. Hunt(53) the words pro se were introduced into the maxim, “to show that no man can renounce a right of which his duty to the public and the claims of society forbid the renunciation.” [Park Gate Iron Co. v. Coates(54), MacAllister v. Bishop of Rochester(55), Shutte v. Thompson(56), Montgomery v. Edwards(57), Wilson v. McIntosh(58)]. In view of these principles, let us consider for a moment, the object of the rule embodied in sec. 99 of the Transfer of Property Act. It was pointed out by the learned Judges of the Allahabad High Court in Mahabir Singh v. Saira Bibi that sec. 99 was enacted with a view to prevent the evil results which followed from sales of mortgaged properties by mortgagees in execution of money decrees; these consequences are stated to have been threefold, namely, first, the mortgagor, who would ordinarily be entitled to the facilities afforded in a mortgage suit for repayment of the mortgage debt is summarily deprived of the equity of redemption; secondly, a purchaser would hardly pay full value for the equity of redemption as he would take subject to the unascertained claim of the mortgagee, with the result that the mortgagee himself would purchase the property for a merely normal sum; and, thirdly, that if the purchaser took the property without notice of the mortgage and was subsequently called upon to discharge the incumbrance, there might be great hardship upon him unless he was afforded the benefit of the doctrine of estoppel [Muhammad v. Shib Sahai(59)]. Reference may also be made to the cases of Govind v. Pareshram(60), Lachmi Narain v. Nand Kishore 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 he had to the decisions in Emam Momtazuddin v. Raj Coomar(61) and Bhuggobutty v. Shama Churn(62) 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(63) of Norman, J., in Ram Lochun v. Kamini(64) of Macpherson, J., in Kamini v. Ram Lochun(65) and of Markby, J., in Neerunjun v. Oopendro(66). The matter is nowhere dealt with more effectively than in the judgment of Mr. Justice Norman, where upon an claborate review of the English authorities on the question of the relation of the mortgagee to the morgaged premises, that learned Judge ruled that a mortgagee ought not to be allowed to sell the mortgaged property in execution of a mere money claim, and that if he did so and purchased the property himself, he could not acquire an irredeemable title. It is not necessary to consider whether there are any, and, if any, what qualifications to this principle. (Jones on Mortgages, sec. 711 and secs. 1038 to 1046). It is sufficient for our present purposes that this was the principle which the Legislature had in view. If so, as the provision was for the benefit of the person entitled to redeem the mortgage property, he at any rate is entitled to waive it. If with full knowledge of the impending sale in execution of a money-decree, he allows the property to be sold, if with knowledge that the sale has taken place he allows the sale to be cofirmed, that is to become final and conclusive, upon what principle can he be allowed to challenge the title of the purchaser, because the sale has been held in contravention of the provisions of sec. 991 There are no intelligible grounds on which he ought to be permitted to do so. This view is borne out by the decision of their Lordships of the Judicial Committee in Khiarajmal v. Daim where it was ruled that a sale by a mortgagee on the basis of a money-decree for the mortgage debt, and a purchase by him of the equity of redemption in execution, do not relieve him of his obligations as mortgagee, though the sale is not a nullity for want of jurisdiction, but is affected by irregularity in procedure only. On these grounds, I must respectfully dissent from the decision in the first class of cases, that a sale in violation of sec. 99 is a nullity.

The question next arises, what are the rights of the owner of the equity of redemption, when a sale, which is contrary to the provisions of sec. 99 and which is consequently merely voidable, has been actually held. The second and third classes 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 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 appropriate objection, before it took place. This view was sought to be supported by reference to the decision of this Court in Durya Charan Mandal v. Kali Prasana Sarkar and a similar view was adopted in Umed v. Jasram(68). It is to be observed, however, that in Durga Charan v. Kali Prasana objection to the validity of the sale was taken, and allowed to be taken, after the confirmation of sale, on the ground that the judgment-debtors had no knowledge of the proceedings which led up to the sale and its confirmation. In my opinion, there is an obvious distinction between an application to set aside the sale before its confirmation, and another made after the confirmation. Under sec. 316 of the Civil Procedure Code, the effect of which was examined by this Court in Bhowani Koer v. Mathura Prosad(69), the title of the purchaser at an execution sale is not perfected till confirmation, and it does not vest in him before the date of the sale certificate. It is liable to be set aside either under sec. 310-A or 311, C.P.C, if so, there does not appear to be; say good reason why it should not be liable to attack on the ground that it has been held contrary to the provisions of sec. 99 of the Transfer of Property Act. That ground, if established, would by itself be sufficient to entitle the judgment-debtor to have the sale set aside. The decree-holder can hardly take up the position, that the judgment-debtor is estopped by reason of his omission to take objection before the sale, because the decree-holder has, with his eyes open, acted in contravention of the provisions of the statute. If, however, the application is made after the confirmation of the sale, the position is different. If the judgment-debtor was aware of the sale, and if it has been confirmed with his knowledge, he must be taken to have been a party to that order. Under such circumstances, on what principle can he be permitted to challenge the sale after confirmation? [See Kheber on Void Judicial and Execution Sales, sec. 436 and Freeman on Void Judicial Sales, sec. 44]. Sec. 99 is intended for his protection; assume that before the sale, he was not in a position to judge whether a sale, contrary to that section, would prejudice him, and this may be a good reason for his omission to take objection before 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 Mangli Prasad v. Pati Ram*(71). 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, Set Umedmal v. Sri Nath Ray(72), O'Connor Richards(73), Alvin v. Bond(74) and Watson v. Birch(75)]. 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 under sec. 311, C.P.C Upon proof that sec. 99 has been contravened, the sale must be set aside.

The third class of cases, to which reference has been made, affirms the doctrine that a sale held contrary to the principle embodied in sec. 99, is not a nullity, and if the mortgagee purchases at such a sale, he does not acquire an irredeemable title. The leading decision on the point is that of the Judicial Committee in Khiarajmal v. Daim. There the mortgagees obtained a decree for money against the mortgagors upon a claim independent of the mortgage: they executed this decree, and purchased the equity of redemption. The mortgagors then sued to redeem the mortgage upon the footing that the sale was a nullity. Their Lordships ruled that the sale could not be treated as a nullity, but that the mortgagees had not acquired an irredeemable title. They accordingly allowed the mortgagors to redeem upon payment of what was due upon the mortgage, and what had been paid by the mortgagees at the execution sale for the purchase of the equity of redemption. If the sale is merely voidable, and therefore stands goods till avoided by the appropriate procedure, it is not easy to perceive how the mortgagor can exercise his right of redemption till the sale has been set aside, and this view has in fact been affirmed in Modan v. Jamna; but although there may be room for controversy whether the view is strictly logical it may be observed that it leads to substantial justice, and gives precisely the same result, as would be attained by a reversal of the sale, in the first instance and redemption thereafter. If the sale is set aside upon a proper application made, the mortgagee purchaser gets back the money paid at the execution sale, and the mortgagor is left free to redeem the security. According to the view taken by the Judicial Committee, the mortgagor gets back the property upon payment of precisely the same sum. The result is exactly the same, but the procedure is different; in the former case, there is a successful application to set aside the sale followed by a suit on the mortgage in which the mortgagor gets an opportunity to redeem; in the latter case, there is a suit for redemption in which the rights of the parties are worked out. It is not necessary for our present purposes to pursue this line of enquiry further, which can properly arise only in a suit for redemption; but I observe that in Muthu v. Karwppan(76) 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.

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 notice of the sale or of the confirmation by reason of fraud or otherwise: the only element which is necessary for reversal of the sale is that sec. 99 has been contravened. The second question, namely, whether the right of redemption of the mortgagor is or is not affected by such a sale need not be answered, as it arises only in a suit for redemption and not in the proceedings for reversal of the sale.

If wo apply these principles to the case before us, it is obvious that the order of the Court below cannot be sustained. The sale which is impeached took place, on the 1st August 1904, and was confirmed on the 27th September following. An application to set aside the sale was made on the 7th August 1905. The sale was attacked on various grounds of fraud, material irregularities and substantial injury. The Court of first instance did not enquire into these allegations, but set aside the sale, on the ground that it had been held contrary to the provisions of sec. 99 of the Transfer of Property Act. This order was confirmed on appeal. Clearly the order must be discharged. Before the sale can be set aside on the ground of contravention of sec. 99, the applicant must establish that the sale and its confirmation took place without his knowledge. If he proves this the sale must be set aside: if he fails, the grounds alleged in his original application must be investigated.

B.C

S.C.S