Manohar Lall, J.:— This appeal has been referred to a Special Bench for a decision of the question whether a sale held in violation of the provision of section 163A of the Bihar Tenancy Act is void or voidable only.
The facts are as follows. The respondent obtained a rent decree against the appellant and in execution he proceeded to sell the holding. The court fixed the valuation after hearing the parties at Rs. 125 per acre or Rs. 78-2-0 a bigha and this was inserted in the sale proclamation which was duly promulgated. On the 6th of August, 1942, plot no. 3196/0 with an area of 4 bighas and 12 kathas was sold for Rs. 271-8-6—this was less than the value fixed by the court as the decree-holder purchaser failed to pay poundage fee, the property was ordered to be re-sold on the following day, but on that day one of the judgment-debtors, who is a brother of the appellant, Baleshwar Choubey, filed an application for time waiving his right to a fresh sale proclamation and paid Rs. 50 to the decree-holder. Accordingly, the sale was adjourned and took place on the 10th of September, 1942, when the decreerholder purchased the same plot for Rs. 220-8-6, that is to say after deducting Rs. 50 from the driginal sale price which was bid by him on the 6th of August, 1942. As no application, was filed on behalf of the judgment-debtor to have the sale set aside, the sale was duly confirmed on the expiry of 30 days. On the 7th of September, 1944, Baleshwar Choubey filed an application to have the sale set aside. The application was headed under section 47 and Order XXI, rule 90 of the Code of Civil Procedure. As the application was filed beyond 30 days of the date of the sale, the applicant rightly did not press the application under Order XXI, rule 90 of the Code of Civil Procedure. He, however, pressed his objection that the sale was illegal and void as the property had been sold for a sum less than the price specified in the sale proclamation and this it was urged was in violation of the clear terms of section 163A.
The learned Munsif held that the executing court had no jurisdiction to sell the property as he did something which was prohibited by law and, therefore, exercised a jurisdiction which was not vested in him. In his view the sale was absolutely null and void and without jurisdiction and must be set aside. In this view, he overruled the objection of the decree-holder that the application to set aside the sale had been filed more than 30 days after the date of the sale, and also negatived the contention that one of the judgment-debtors had appeared in course of the execution proceedings and had made a part payment and had also filed a petition saying that he would not raise any objection about any irregularity in the sale if an adjournment was granted.
In appeal, the learned Subordinate Judge has come to the conclusion that the provisions of section 163A are not mandatory but merely directory and that the non-compliance with them was merely a material irregularity which would certainly have entitled the judgment-debtor to have the sale set aside under Order XXI, rule 90 of the Code of Civil Procedure, but it did not vitiate the sale which he could not hold to be null and void. He also held that the application under Order XXI, rule 90 which was not pressed by the judgment-debtor was barred by limitation as the applicant must have been aware of the date of the sale before the sale actually took place. Accordingly the second appeal to this Court.
A large number of cases have been cited before us on behalf of the parties. Before considering such of the cases as have any relevance to the question before us, it is necessary to consider the terms of section 163A upon the construction of; which the decision in this appeal must depend.
Section 163A so far as is relevant for the present purpose enacts:
“Notwithstanding anything contained in the Code of Civil Procedure, 1908, a holding or portion of a holding advertised for sale shall not he sold for a price lower than that specified in the sale proclamation:
Provided that if the highest amount bid for such holding or portion of a holding is less than the price specified for the same in the sale proclamation, the Court may sell such holding or portion for such highest amount if the decree-holder consents in writing to forego so much of the amount of the decree as is equal to the difference between the highest amount bid and the price specified for the holding or portion in the sale proclamation”.
The obvious intention of this provision is to prevent any holding or a part of a holding of a judgment-debtor from being sold in execution of a rent decree against him for a price less than what had been determined by the court to be its proper apparent value and specified in the sale proclamation. The provision, is, therefore, intended only for the benefit of a particular class of persons and is not based upon any ground of public policy so that the condition prescribed by the statute cannot be considered as utterly indispensable and may be waived, because 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 policy. This rule is expressed by the maxim of law, Qullibet potest renuntiare juri pro se introducto, or any one may renounce a law introduced for his own benefit. See Broome's Maxims, 7th edition, page 531, and the cases of Rumsey v. N.E.R Co. and Caledonian Ry. Co. v. Lockhart. The proviso to the section under consideration itself contemplates that the sale may beheld for a price less than the amount specified in the sale proclamation if the decree-holder-consents in writing to forego the amount equal to the difference between the highest amount bid and the price specified in the sale proclamation. Now, this is obviously for the benefit of the judgment-debtor, and he may waive it expressly or impliedly. There, is no express waiver in the present case, but in my opinion, there is an implied waiver, because the judgment-debtor did not tell the court before the sale was confirmed that the sale was not for the full price mentioned in the sale proclamation.”
Confusion is apt to arise in not keeping in mind the distinction between complete absence of jurisdiction in a court to pronounce judgment or to execute a decree and where a court in the undoubted exercise of its jurisdiction proceeds to act irregularly or even illegally in direct violation of the provisions, of a statute.
In the present case the executing court had jurisdiction to execute the rent decree. It had jurisdiction over the person; it had jurisdiction to sell the holding as provided by section 158 AA of the Act. The proviso to section 163A - can only be considered after the court has proceeded to sell the property and certain price is offered for the sale by the highest bidder. It is true the court should not have confirmed the sale, but he has jurisdiction to decide and act rightly or wrongly. It was pointed out by Rampini, A.C.J, in the well-known case of Ashutosh Sikdar v. Behari Lal, that a sale (held in violation of section 99 of the then Transfer of Property Act) can be avoided before its confirmation by an application under section 47 of the Code of Civil Procedure without its being necessary for the applicant to show more than that the provision of that Act have been contravened, but after confirmation the sale can only be avoided by an application under section 47, provided that the applicant establishes that owing to fraud or other reason he was kept in ignorance of the sale proceedings preliminary to sale. In my view, the remedy of the judgment-debtor in the present case was to make an application under section 47 before the sale was confirmed and the sale could then easily have been avoided by the judgment-debtor merely pointing out that the proviso to section 163A has been violated or the decree-holder would have been called upon to agree in writing to forego the difference between the price fetched at the sale and the price which was fixed for the holding on part of the holding in the sale proclamation by the court.
Several cases of the Privy Council support this view.
Tassaduk Rasul Khan v. Ahmad Hussain. In that case the sale was held before the expiry of 30 days calculated from the date upon which a copy of the sale proclamation was fixed up in the court house by the judge ordering the sale. This was in violation of the provision of section 290 of the then Civil Procedure Code now corresponding to Order XXI, rule 54 of the Code of Civil Procedure. It was argued that such a sale being in direct violation of the statute was a nullity, but their Lordships held that the non-compliance with the provision of section 290 was no more than a material irregularity and would not render the sale null and void.
Rajah Gobind Lal Roy v. Ram Janam Misser. In that case a sale for arrears of revenue contrary to the provision of section 17 of Act XI of 1859 was sought to be declared as null and void. But their Lordships held that even though the estate was sold for arrears which accrued due, during the period it was subject to an order of attachment issued by the. Collector and, therefore, in violation of section 17 of the Act the sale could not be treated as null and void. Lord Macnaghten in delivering the judgment of the Board observed at page 174: “In the opinion of their Lordships, a sale is a sale made under the Act XI of 1859 within the meaning of that Act when it is a sale for arrears of Government revenue, held by the Collector or other officer authorized to hold sales under the Act, although it may be contrary to the provisions of the Act either by reason of some irregularity in publishing or conducting the sale, or in consequence of some express pro-4 vision for exemption having been directly contravened”.
Malkarjun v. Narhari. In that case it was held that an execution sale cannot be treated as a nullity if the court which sells has jurisdiction to do so even though it erroneously decides that a person who in fact does not represent the estate of the deceased judgment-debtor is such a representative. Their Lordships held that the court made a sad mistake it is true, but the court has jurisdiction to decide wrong as well as right and if it decides wrong, the wronged party can only take the course prescribed by law for setting matter right, and if that course is not taken, the decision, however wrong, cannot be disturbed. Lord Hobhouse, who delivered the judgment of the Board, proceeded to observe at page 225: “The real complaint here is that the execution Court construed the Code erroneously. Acting in its duty to make the estate of Nagappa available for payment of his debt, it served with notice a person who did not legally represent the estate, and on objection decided that he did represent it. But to treat such an error as destroying the jurisdiction of the Court is calculated to introduce great confusion into the administration of the law. Their Lordships agree with the view of the learned Chief Justice that a purchaser cannot possibly judge of such matters, even if he knows the facts; and that if he is to be held bound to inquire info the accuracy of the Court's conduct of its own business, no purchaser at a Court sale would be safe”.
Khiarajmal v. Daim. In that case it was pointed out that the court would have no jurisdiction to sell the property of persons who were not parties to the proceedings or properly represented on the record and against such persons the decrees and sales purporting to be made would be a nullity and might be disregarded without any proceeding to set them aside, but a sale held at the instance of a mortgagee in execution of a money decree could not be held as passing he title to the mortgagee auction purchaser even though it did not affect the right of redemption of the mortgagor.
There is an exhaustive consideration of the principle as to when a sale should be treated as a nullity if held in violation of the provision of a statute by Sir Ashutosh Mukherji in his elaborate judgment in the case of Ashutosh Sikdar v. Behari Lal; where the learned judge has pointed out that a sale held in contravention of the terms of section 99 of the Transfer of Property Act is not a nullity, but an irregular sale liable to be avoided merely on proof that the terms of that section have been contravened.
Applying these principles to the facts of the present case I am of opinion that the sale held on, the 10th of September, 1942, cannot be treated as a void sale, and the view taken by the Subordinate Judge in appeal is correct.
The only direct decision of this Court is that reported as Rajendra Prasad. This is a decision of Agarwala, J. (as he then was) and holds that the court has no power to sell at any price below that fixed by the sale proclamation and, therefore, a sale against this clear statutory prohibition must be regarded as void. For the reasons given above I am unable to agree with this view. I would respectfully dissent from it.
I have perused the judgment which has been prepared by my brother Shearer. He has taken the view that as the amount bid by the decree-holder was the amount due on the decree although substantially less than the amount fixed in the sale proclamation, there was no obligation on the court to obtain from him any consent in writing to forego the difference between the amount of the decree and the amount fetched at the sale, and, therefore, he thinks that there was no irregularity in conducting the sale. He suggests that the expression “the price specified in the sale proclamation” in the first proviso to section 163A means “the amount for the recovery of which the sale is ordered”. With great respect, I am unable to agree with this. The words are “the price specified for the same”. We, therefore, have to look to the word to which attention is drawn by this word ‘same’. That must mean the holding or portion of the holding advertised for sale. A simple illustration will show that this is the meaning. Take where under section 163 the court fixes the value of the holding or a part of the holding at Rs. 300, the decretal amount is Rs. 200, but the highest amount bid for the holding or the part of the holding as the case may be is Rs. 250. What is “the price specified in the sale proclamation” Obviously Rs. 300 and not Rs. 200.
The argument that the legislature could not have intended to mean this should not be allowed to prevail against the clear words of the statute. Lord Atkin in delivering the judgment of the Board in Pakala Narayan Swami v. King Emperor observed at page 78 that “when the meaning of words is plain, it is not the duty of the courts to busy themselves with supposed intentions” and quoted the remarks of Lord Wensleydale in Grey v. Pearson: “I have been long and deeply impressed with the wisdom of the rule, now I believe universally adopted at least in the Courts of Law in Westminster Hall, that in construing wills and indeed statutes, and all written instruments, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no further”. There is also a quotation at page 79:
“Mr. Lords, to quote from the language of Tindal, C.J when delivering the opinion of the judges in the Sussex Peerage case, 11 C.L & F., at page 143 (1844) ‘The only rule for the construction of Acts of Parliament is that they should be construed according to the intent of the Parliament which passed the Act. If the words of the statute are in themselves precise and unambiguous, then no more can, be necessary than to expound those words in their natural, and ordinary sense. The words themselves alone do in such case best declare the intention of the lawgiver. But if any doubt arises from the terms employed by the legislature, it has always been held a safe mean's of coll eating the intention, to call in aid the ground and canse of making the statute, and to have recourse to the preamble which according to Dyer, C.J (Stowel v. Lord Zouch) (Pl owd. at p. 369), (1562) is a key to open the minds of the makers of the Act, and the mischiefs which they are intended to redress”: Lord Halsbury, L.C in Commissioner for Special Purposes of Income-tax v. Pemsel).
In my opinion the language of the provision under consideration is reasonably plain and the intention of the legislature as expressed by the clear words is that the property to be sold in execution must fetch the price fixed for it by the court. So construed it does not lead to any inequity or absurdity in any situation that may arise. I take three illustrations:
Illustration I.— Where the price is fixed at Rs. 250 and the decretal amount for which it is to be sold is Rs. 250 and the sale is held for Rs. 230. Here, as the price fetched at the sale is less than the price fixed by Rs. 20, the proviso will come into play and the decree-holder will be required to forego Rs. 20. The result is that the decree so reduced is satisfied in full and the full price of the property as fixed by the court is thus secured to the judgment-debtor.
Illustration II.— Where the price fixed is Rs. 250, the decretal amount is Rs. 200 and the price fetched at the sale is Rs. 200. Here, the decree-holder must forego Rs. 50 which is the difference between the price fixed and the price fetched. He will be required to put in Rs. 50 if be wants to be the auction-purchaser of the property of which the value is Rs. 250. The judgment-debtor gets the full value of the property, and the decree-holder cannot complain because he is getting the property after paying for it its full value, that is the price fetched at the sale and the difference in cash.
Illustration III.— Where the price fixed by the court is Rs. 300, the decretal amount is Rs. 200 and the price fetched at the sale is Rs. 250. Here also the decree-holder will be required to forego the difference not between the decretal amount and the price fixed by the court, but between the price fixed by the court and the price fetched at the sale, that is to say Rs. 50. Here also the same situation arises and the decree, holder auction-purchaser cannot complain that by the requirements of the legislature the full price of the land has been secured to the judgment-debtor.
I fact to see any inequity in these cases as it will be open to the decree-holder not to agree in writing to forego the difference. In that case the property will be sold to a third person or it will be ordered to be re-sold, or a fresh sale proclamation will be issued in which a lesser portion of the holding will be directed to be sold.
Take the position under the old law as it stood before the amendment by section 163A. The decretal amount due to a decree-holder was, say Rs. 100, and the holding or a portion of the holding which was sold was worth Rs. 400 and the highest bid offered was also Rs. 400 by the decree-holder himself or by a third person. In either of these cases the tenant gets Rs. 400 less the decretal due of Rs. 100, that is to say Rs. 300. The decree-holder auction purchaser in such a case would have been required to deposit the whole amount but for the fact that he is allowed a set off to the extent of the decretal amount. A stranger auction-purchaser on the other hand would be required in such a case to deposit the whole amount.
It is true that in the present case the price specified in the sale proclamation happens to be larger than the amount recoverable under the decree, but this is a mere accident. In the majority of cases the court will be astute to see that only that portion of the holding is directed to be sold, the value whereof approximates closely to the amount sought to be recovered by the sale. If the decree-holder's complaint is that the valuation of the holding or a part of the holding as fixed by the court is excessive, that can be redressed by a regular appeal, and if there is no appeal, we must assume that as between all the parties the real value of the holding is that which has been fixed by the court.
The real answer to the difficulty which has suggested itself to my brother Shearer is that after the auction sale the decree-holder loses his position as decree-holder if he he comes the auction-purchaser. Why should the legislature intend to give a relief to the decree-holder auction purchaser which is not available to an ordinary auction-purchaser. The truth of the matter is that the legislature is anxious to secure to the judgment-debtor that his property is not sold for an inadequate price as used to be done in a large number of execution cases before the amendment, and that the full value of the holding or a part of the holding as fixed by the court must be secured to him. If the decree-holder becomes the auction-purchaser he will be treated just like a stranger auction-purchaser and will be required to put into court the whole of the amount which has been bid for the property. In the case of the decree-holder, he will be allowed a set off to the extent of his decree or to the extent of his reduced decree as the case may be.
For these reasons I am unable to agree with the views of my learned brother Shearer.
The result is that I would dismiss this appeal with costs.
Meredith, J.:— I am in complete agreement with the views so cogently put forward by my learned brother, Manohar Lall, J., and in respect of them I have nothing to add. I should, however, like to say a word with regard to the judgment of my learned brother, Shearer, J., which I have had the advantage of perusing.
Shearer. J. has raised the question whether the expression in section 163A
“Provided that if the highest amount bid for such holding or portion of a holding is less than the price specified for the same in the sole proclamation, etc.”
refers to sub-section (2)(b) or sub-section (2)(c) of section 163— whether it refers to the estimate of the value of the holding made by the Court, or the amount for the recovery of which the sale is ordered. He is of opinion that the reference is to the ???, sub-section (c).
With the greatest respect I am unable to agree. The words used in the proviso to section 163A are “price specified or the holding”. These words seem to me to refer to the price specified as the value of the holding stated in the sale proclamation. The words “price specified for the holding” would, I think, be inappropriate in reference to the decretal amount for the recovery of which the sale is ordered, an entirely different thing. I cannot see how the amount for the recovery of which the sale is ordered can possibly be taken as equivalent to the price specified for the holding.
I think the intention of the legislature was merely to protect the tenant from having his holding sold at an inadequate price, and accordingly what was provided was that the tenant must receive a fair price for his holding, as estimated by the Court. That is exactly the effect of the proviso if my interpretation is correct. The decree-holder must forego the difference between the price fetched and the estimated value I do not think the legislature meant to assume that the Court's estimate might be wrong. I think, on the contrary, the assumption was that it would be right. Provision was made in section 163, sub-section (5) for hearing the parties and in sub-section (6) even for an appeal on that point. Everything was done to ensure that a correct estimate should be arrived at before the sale of the holding, and I think the assumption upon which the legislature proceeded was that the correct value would be specified. Now if less than that is fetched, the law has provided that the deficiency would be made up by the decree-holder foregoing that much of his decree, and so instead of setting off the whole of his decree against the purchase price he must pay into Court, if he is the purchaser, such portion of the Drice as will make up the deficiency. But for the set-off he would have to pay into Court the whole price. If, on the other hand, a third person is the purchaser, that purchaser would pay the whole price. The tenant will receive such sum as together with the purchase price will make up a fair price for his holding, and the decree-holder will take only the balance. The decree-holder can always avoid purchase for an inadequate price by a third person by bidding the fair price fixed in the sale proclamation himself. If the decree-holder has purchased himself, true, he may have to forego a portion of his decree, but as against that he has obtained the holding for so much less than its proper value. In other words, he has really foregone nothing. The value of the holding he has obtained together with that portion of his decree which he has not foregone exactly makes up for the amount of his decree plus what he has paid info Court. He has no grievance. The retrofit on his purchase is just the amount of the decree which he foregoes. The effect of the provision so far as he is concerned is that he really gets the whole value of his decree, but he cannot make a profit on the business. Similarly, a tenant gets in place of his holding its value less the amount of the decree which he has had to pay. The provision, in my opinion, is quite equitable towards both sides.
Shearer, J.:— The value of the holding as estimated by the learned munsif was Rs. 359-6-0. The amount due on the decree at the time the sale took place was Rs. 221-8-6. The difference between these two amounts is Rs. 137-13-6. I agree with my learned brothers that, if a duty was cast on the court executing the decree to refuse to accept the decree-holder's bid of Rs. 221-8-6, unless and until he had consented in writing to forego Rs. 137-13-6 out of the amount due to him, the omission of the court to obtain such consent did not affect its jurisdiction and was a mere irregularity in conducting the sale which rendered the sale liable to be set aside on a proper application being made by the judgment-debtors but did not render “the sale itself null and void.” I adhere, however, to the view which I expressed in the course of the argument that, as the amount bid by the decree-holder was the amount due on the decree, there was no obligation on the court to obtain from him any consent in writing at all; in other words, there was no irregularity in conducting the sale and, therefore, no ground on which it could be set aside. Whether there was an irregularity or not depends on the meaning to be attached to the expression “a price lower than that specified in the sale proclamation” as it occurs in section 163A of the Bihar Tenancy Act. In order to ascertain this, one must turn, in the first place, to sub-section (2) of section 163 of the Act, which sets out the particulars to be entered in sale proclamations. That sub-section does not require anything in the nature of a reserved or upset price to be entered. In fact, the word “price” does not occur in it. It, however, requires two sums of money to be entered, one representing
“the value of the tenure or holding, or, if the property to be sold is a portion of the holding, the value of such portion as determined by the court”
and the other representing
“the amount for the recovery of which the sale is ordered”
In practice, very different consequences will ensue according as the expression “price…………………….specified in the sale proclamation” is taken to mean the sum appearing against “the value of the tenure or the holding………………” or the sum appearing against “the amount for the recovery of which the sale is ordered”. If it means the latter amount, then, in the event of the highest bid being less than the amount due on the decree, the decree-holder, as a condition precedent to taking the land advertised for sale will merely be required to forego his right to put the decree into execution again for the balance still due to him. If, on the other hand, it means the former, the decree-holder will not merely have to relinquish his right to put the decree into execution again, but will also have to pay money into court. In this particular case, for instance, if the court had required the decree-holder to consent in writing to forego a sum of Rs. 137-13-6, and if the decree-holder had consented, then the amount due on the decree, when the decree-holder's bid was accepted, would not have been the amount bid, namely, Rs. 221-8-6, but that amount less Rs. 137-13-6 which he had just consented in writing to forego. In other words, the decree-holder, having bid more than the amount due on the decree, would have had to pay the difference, namely, Rs. 137-13-6, into court. Section 163A is, I consider, a classic example of hasty, improvised and piecemeal legislation. Its effect is twofold. In the first place, it provides that, when an occupancy holding, or a portion of an occupancy holding, is sold at auction in execution of a rent decree, the auction shall no longer be without reserve but shall be subject to a reserved or upset price. Secondly, it provides, in effect, that the decree-holder shall not be permitted to bid unless he is prepared to bid at least the amount due under his decree. I should have thought myself, that the first of these objects could better have been achieved by amending section 166 of the Act, which provided, or implied, that the auction should be without reserve, and the second, by amending sections 173, which provided that the decree-holder might bid without the permission of the court. Both section 166 and section 173 have, however, been left intact, although the provisions contained in them are at variance with the provisions contained in the new section 163A. Moreover, section 163A does not provide what is to happen if the highest price bid is less than the reserved price and the decree-holder is not present and cannot or does not give the necessary undertaking. Finally, it does not state in clear terms what the reserved price is to be or, what, therefore, is the contingency in which the holding, or portion of the holding, may be knocked down to the highest bidder although his bid is less than the reserved or upset price. These are all matters which, with the greatest respect to my brother Manohar Lall, appear to me to be left in obscurity and to be inferred from the language used in the section itself and in ocher sections of the Act. I turn first to sub-sections (5) and (6) of section 163. The object of the proceeding referred to there is to determine whether the holding or only a portion of it, and, if so, what portion, shall be sold. The matter is one of importance, and for that reason an appeal lies against the order of the court executing the decree. The court obviously cannot determine what portion of the holding should be sold unless it first ascertains its value. The ascertainment of the value is not, however, as I see it, the primary object of the proceeding. If the court executing the decree valued the land at Rs. 200 a bigha, and the appellate court valued it at Rs. 400 a bigha, the latter court would not be doing its duty if it merely ordered the figure inserted in the sale proclamation against the column headed “value” to be doubled. It would be incumbent on it, besides altering that figure, to order that some other and smaller portion of the holding should be sold. When the legislature inserted clauses (b) and (c) in sub-section (2) of section 163 it was not, I think, providing for the wholly exceptional case where, in consequence of the prohibition against selling a portion of a plot, the value of the land to be sold is necessarily greater than the amount due under the decree. It contemplated, I think, that the value of the portion of the holding to be sold would invariably exceed the amount for the recovery of which the sale was ordered. At all events, that would seem to be the conclusion to be drawn from the language actually used. The words
“the proceeds of the sale of which it confiders will be sufficient to satisfy the decree”
in sub-section (5) of section 163 appear to me to imply that the court, in determining which portion of the holding is to be sold, will bear in mind that it is not fo be sold by private treaty but by auction at a forced sale, and that at such, a sale the price obtained is not likely to be the full market value. A wider discretion appears to be left to the court executing a rent decree than is left to a court executing a decree for the payment of money by the proviso to Order XXI rule 17(4), which states that
“the value of the property attached shall as nearly as may be correspond with the amount due under the decree”.
However that may be, there is nothing in section 163 to suggest that the reason why the legislature, required the value of the portion of the holding to be sold to be entered in the sale proclamation was that the sum there entered was to be the reserved or upset price referred to in section 163A. Section 163, as it stood originally required the particulars mentioned in section 287, or Order XXI, rule 66 of the Code of Civil Procedure, fo be entered in sale proclamations, and one of these particulars was the roust's estimate of the value of the holding. That was one of the things which the court was deemed to consider “material for a purchaser to know in order to judge of the nature and value of the property”. As the court now has to determine far more carefully than it ever did before the value of the holding or portion of the holding to be sold, there is the more reason to enter it in the sale proclamation. Turning now to section 163A of the Act itself, is there anything there which leads to the conclusion that the expression
“the price specified in the sale proclamation”
must necessarily be construed as meaning the sum entered against “the value as determined by the court” and cannot be construed as meaning “the amount for the recovery of which the sale is ordered”. My learned brothers divorce the expression “the price specified in the sale proclamation” from the context in which it appears and say that “price” necessarily means “value”. I agree that the words “value” and “price” are analogous, but I am quite unable to see any analogy whatever between the reserved or upset price at an auction sale, and, especially, a forced auction sale, and the market value, which is the price a willing purchaser would be prepared to pay to a willing vendor who was under no compulsion to sell his property. On the contrary, when a man is forced to sell property in order to raise money, one would rather expect any reserved price he puts on it to be the sum of which he stands in need. When a holding at fixed rates is sold by auction in execution of a rent decree, the auction is, and always has been, subject to a reserved price. The reserved price as stated in section 164 of the Act is
“a sum sufficient to liquidate the amount of the, decree and costs including; the costs of sale”.
The clue to the meaning of section 163A is, I think, to be found in the use by the legislature of the word “forego”. To Chambers dictionary it is stated that. “forego” means “to give up”. In the Oxford dictionary it is said to mean “to abstain or refrain from some action or procedure” or “to give up, part with, relinquish”. The court as a condition precedent to accepting the highest bid is to require the decree-holder to forego or give an something, implying thereby something which, if the condition were not imposed and the bid were accepted, would belong to or be retained by the decree-holder. That must necessarily be his right to levy execution on his decree for the balance of the money still due to him. In other words, if the expression “the price specified in the sale proclamation” means the sum entered against the amount for the recovery of which the sale is ordered the use of the word “forego” is appropriate. If it means the sum entered in the sale proclamation against “the value as determined by the court”, the use of the word “forego” is altogether inappropriate. How can you describe a somewhat complicated transaction between the court and the decree-holder which results in the decree-holder, who has been unable to realise his security, not merely undertaking not to proceed further against his judgment-debtor ??? actually paying money into court to be paid out later to his judgment-debtor by saying compendiously that the decree-holder is required to forego so much out of the amount due to ??? in under his decree. To say that is perhaps to state the result of the transaction financially to the decree-holder, but it does not accurately describe the transaction itself. As I understand section 163A, the landlord, in the event of his security not being realised in full at the auction sale, is given the option either of taking the security itself and relinquishing his right to proceed against his tenant for the balance still due to him or to apply for the issue of a fresh sale proclamation in the hope that more bidders may be forthcoming and higher bids may be obtained. In that view it is perhaps still possible to say that the landlord has a charge on a portion of the holding but is forbidden to bid at the auction unless he is prepared to bid up to the amount due under his decree. But, if, possibly, after several unsuccessful attempts to realise his security, the landlord is to be compelled to choose between getting nothing and taking something, he may not want paying for it its full market value less the amount due to him under his decree, how can it possibly be said that he still has a charge? If the landlord has zirat or bakasht land in the village and can at once obtain khas possession of the land he is compelled to purchase and cultivate it himself, he may, assuming the court has valued the land correctly, not be put to actual loss. But, suppose, that is not so, there is, I consider, a patent ambiguity in section 163A. If you isolate the expressions “price specified in the sale proclamation” and “price specified for the same”, and in order to ascertain the meaning look only to the sale proclamation, then, as the words “holding or portion of the holding” only appear against the entry relating to valuation, the conclusion would seem to follow that the sum there entered is the reserved or upset price. On the other hand, if you read the section as a whole, and give due weight to the word “forego” and if you also endeavour to make the provisions contained in the section consistent with other connected provisions in the Act, the conclusion which must, I think, necessarily be drawn is that the reserved or upset price is “the amount for the recovery of which the sale is ordered. That, in my judgment, is the correct method to adopt. The best course would, I think, be for the legislature to resolve the” ambiguity in section 163A, and the similar ambiguity which exists in section 14 of the Bihar Money-Lenders Act, by saying more clearly what exactly it meant. The facile assumption that “price” means “value” although “price” in this context means “reserved or upset price” and “value” means “market value” has undoubtedly resulted in courts executing rent and money-decrees attempting to carve up the property of judgment-debtors in such a way as to ensure that the market value of the property to be sold will correspond exactly with the amount due under the decree. This is a task which, I consider myself, it is quite impossible for them to discharge. If the value of property compulsorily acquired by the State were to be ascertained in the way in which civil courts now ascertain the value of property to be sold in execution of rent decrees, there would be a great and justifiable outcry. What courts executing rent decrees can do, in a great many cases, is to say that it is unnecessary to sell the entire holding and to determine roughly what portion of the holding it will suffice to sell in order to give the landlord the rent due to him. If tenants who are unable to pay their rent may now compel landlords to purchase a portion of their holdings at its full market value, the legislature ought to have said so in plain and unmistakable language. It ought not to have attempted to effect so revolutionary a change in the rent law by inserting this highly ambiguous section and leaving untouched such a provision as that rent is a first charge on the holding.
K.D
Appeal dismissed.