P L D 1961 Dacca 812 (PLP)

The case of Panchanan Das Majumdar v. Kunja Behari Mal, is the only case of this Court, in which a different view has been taken. We are unable to agree in the interpretation that has given to the decision of the Judicial Committee in. the case of Thakur Barmha v. Jiban Ram Marwari, upon which it purports to proceed. In the case before the Judicial Committee, the property that was under attachment and sold was a 6 annas share of a mahal subject to a mortgage, and after the purchaser applied for correction of the certificate of sale by adding the word "not" to the description of the property, the result of which would be to pass an unencumbered 6 annas share, an entirely different property from what was attached and sold. The case is no authority for the proposition that an auction is invalid for want of attachment, even though the sale proclamation correctly mentioned and described the property which is sold " I entirely agree with their Lordships in the view taken in the above case. So the case cited by the learned Advocate for the petitioners does not very much help him in this case. The omission to serve writ of attachment has also been considered to be an irregularity is the case of Sheodhyan v. Bholanath, where Banerji and Aikman, JJ. held "The absence of an attachment prior to the sale of immovable property in execution of a decree amounts to no more than a material irregularity, but is not sufficient, unless substantial injury is caused thereby, to vitiate the sale."

9. The question as to the effect of a sale being held contrary to legislative enactment has been dealt with at sufficient length by Mokherjee and Chotznet, JJ. in the case in Rajant Kanta Ghose and others v. Sk. Rahman Gazi and others, where their Lordships have observed : "It was pointed out in the case of Asutosh Sikdar v. Beharilal Kirtunia I L R 35 Cal. 61, that a sale held contrary to legislative enactment is not necessarily a sale absolutely without jurisdic tion. It cannot be maintained on principle that because a sale has been held in contravention of a statutory provision, it must, irrespective of nature and purpose of the provisions, be deemed to be null and void. Reference may be made to live decisions of the Judicial Committee in illustration of this principle. The cases of Tasaddak Rasul Khan v. Ahmad Hussain 20 I A 176 where a sale was held in violation of the provisions of section 290, C. P. C., Gobinda Sal Roy v. Ram Janam Misser 20 IA 165 where a sale for arrears of revenue was held in contravention of the provisions of sections 5 and 17 of Act XI of 1859, and Malkarjan v. Narkari 27 I A 210 where a sale was held contrary to the provisions of section 248 of the Code amply show that there may be cases where the violation of the express provision of a statute may not nullify the proceedings. On the other hand, the case of Nusservanjee Pestonee v. Meer Mynoodeen 6 M I A 134 where ‑an arbitration proceeding was carried on contrary to the provisions of the Bombay Regulation VII of 1827, and Subramania Ayyar v. King Emperor 28 I A 258 where a trial was held in contravention of the rule of joinder of charges embodied in section 234 of the Criminal Procedure Code are instances where failure to comply with the provisions of a statute completely vitiated the proceedings. The only rule that may be adopted is, that when the provisions of statute have been contravened, if a question arises as to how far the proceed ings are affected by such contravention, the matter must be determined with regard to the stature, scope and object of the particular provision which has been violated. 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, where as 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 anal incapable of being validated."

10. In the case in Ishan Chandra Banikya v. Moomraj Khan the same principle of law affirmed. In that case a decree for enhanced rent was made on compromise between the parties, under the provisions of section 147‑A, Bengal Tenancy Act and the question was whether that could be assailed in a subsequent suit as being without jurisdiction on the ground that the procedure laid down it that section as to the recording of reasons by the Court for being satisfied that the terms of the compromise were such that if embodied in a contract they could be enforced under the Act and that the enhancement was fair and equitable and in accordance with the rules laid down in the Act for the guidance of Courts in increasing rents was not complied with. Their Lordships B. B. Ghose and Graham, JJ. in that case held "Such a decree may be assailed in proper proceedings as erroneous but cannot be said to have been passed without jurisdiction and is valid and binding and the landlords are entitled to a decree for rent at the rate settled by the former decree." At page 944 Graham, J. observed as follows :‑ "In short, jurisdiction or the existence of jurisdiction is, as it seems to me, a fact, and it cannot be said to be non‑existent because it has been a failure to comply with some direction or directions, as to the procedure which should be followed. Failure to comply with such directions cannot be held to deprive the Court of the jurisdiction which it possesses to make the decree." Here the decree‑holder applied for execution of the decree under the provisions of Chapter XIV of the Bengal Tenancy Act and the mere fact that there was no combined issue of attachment cannot be said to have taken away the jurisdiction of the Court to hold the sale as it is only a question of procedure. At the utmost it is only an irregularity and nothing more.

11. The case of Malkarjan Bin Sidramappa Pasare v. Narhari Bin Shivappa and another, of course, does not very much help us for decision of the issue in the present case. I, therefore, bold that the contention raised by Mr. Asaduzzaman Khan for the petitioners that the sale is without jurisdiction, void and illegal on the round of omission of the issue of the writ of attachment cannot be accepted

12. The next contention urged by the learned Advocate for the petitioners is that there was no concise statement issued as against the petitioners. Now, from the records it appears that two of the petitioners Bama Sundari and Jogneswari received the letters containing the concise statement with thumb impressions on the acknowledgment receipts. The learned Advocate has contended that there is no evidence to prove that these were identical thumb impressions of those two petitioners. He has cited the case, in Ramamanemma v. Basavayya, where it has been held, "thumb impressions are not exempt from provisions of section 67 of the Indian Evidence Act Section 67 of the Evidence Act lays down : "that if a document is alleged to be signed or to have bees written wholly or in part by any person, the signature or the hand‑writing of so much of the document as is alleged to be in that person's hand‑writing must be proved to be in his hand writing." Jogneswari was not examined in this case. Bama Sundari was examined but she denied the receipt of any letter containing concise statement but she did not specifically deny the thumb impression in the acknowledgement receipt. Mr. Salam for the opposite‑party, in this connection has cited the case, in Rajani Sut radhar "and another v. Baikuntha Chandra Saha and another; which was a case of service of notice to quite under the Transfer of Property Act. A registered letter containing the receipt was addressed to the tenant which did not come back. But his Lord ship R. Mitter, J. held : "A registered letter which is proved to have been correctly addressed and posted and which did not come back, must be presumed to have reached the addressee, although the latter's signature on the acknowledgment receipt may not be proved." Here, in this ease there is a definite finding that two of the petitioners received the ackowldgment receipt with thumb- impressions. So far as the petitioner No. 3 Lal Mohan Nama is concerned, he did not come to the dock to say that he did not receive any notice although there is nothing on the record to show that notice was issued to him. The learned Subordinate Judge has held "it remains unchallenged that Bama Sundari Nama and Jagnesawari Nama received the concise statements issued upon them". So far as Sarala Sundari Nama is concerned, there was no case that she did not receive the notice. No case was made out before this Court that' she did not receive any notice. Jognes wari Nama also did not deny the service of notice. Henderson, J. in the case of Abdul Gafur v. Gura Mia and others laid down the law as follows : "Failure to issue concise statement to the judgment‑debtor as required by section 163 (3) (o) of the Bengal Tenancy Act is an irregularity and as it prevents the judgment‑debtor from paying money into Court to avert the sale, it is the direct case of the property being sold at an inadequate sum and the sale is liable to be set aside under section 175 (3)." I respectfully agree with the view taken by his lordship in the above case and to any view of the matter this was also nothing but an irregularity and not an illegality. So the sale cannot be set aside on the ground also.

13. As regards the service of sale proclamation the learned Advocate for the petitioners has referred to the Evidence Act and contended, on the authority of the decision in Ram Jadu Lahiri v. Din Doyal Shah and others that "Before a presumption could be raised by reason of section 144 of the Indian Evidence Act, a document (here, peon's return) must be established to be genuine". But the facts of the case are quite distinguishable. In that ease the peon was not called and no evidence was called to prove that the document was in the handwriting of that particular peon. But here, the learned Courts below were satisfied not only from the peon's return but sale from the evidence of the witnesses that there was service of sale proclamation. The Courts below have parti cularly referred to the evidence of the drummer. So the principle laid down in the above case: does not apply to the facts of the present case.

14. The learned lower Appellate Court has taken into consideration the fact that the property was sold at a low value. The learned Munsif also has taken the same view and he has added further an explanation. "As to low price it should be pointed out that the purchase has been made by the decree‑holder at the decretal dues as is usually done in rent execution cases and this cannot justify any fraud." That the decree‑holder had no greedy eye on the property will be evident from the materials on record, that even after obtaining the decree, the decree holder waited for about 3 years to put the decree into execution and the D. H. took delivery of possession about two years after this sale. A case as made out by the petitioners that the arrears in question were paid but this was not pressed. It is also in evidence in this case that on a previous occasion also when this property was put up to sale for arrears of rent and the decretal amount was collected from the numerous judgment‑debtors to save the property from sale. It appears that there are numerous judgment‑debtors and this fact probably explains the reason why the decretal amount was not paid and probably, one of them thought that 'others would pay up the amount. The learned Subordinate Judge has considered the question of fraud and all the relevant facts and circumstances and has found against the petitioners and in the face of the finding that there was no fraud, the petitioners have no ground to have the sale set aside when they put in their application for setting aside the sale after the statutory period of limitation. Even in the application for setting aside the sale the petitioners‑judgment‑debtors did not specifically state when they first came to know about the sale, and the concise statement and the acknowledgment receipts and other materials on the record would go to show that the judgment‑debtors were well aware of the sale. There is nothing in this case to show that the petitioners were kept from this knowledge of their right to file this application on account of any fraudulent concealment by the decree holder. The petitioners themselves enquired in the landlord's sherista and were told about the sale. They could very well have applied for setting aside the sale within the statutory period. They are not, therefore, entitled to the benefit of section 18 of the Limitation Act. The learned Subordinate Judge has found in this connection : "There being no suppression of process and fraud in publishing and conducting the sale the petitioners cannot invoke the aid of section 18 of the Limitation Act. The informant P. W. 3, Thakurdas Baidya is highly interested to get the sale set aside in the absence or any fraud the story of knowledge as set up by the petitioners cannot be accepted. In the circums tances, it is found that the petition is barred by time." Even after the sale the decree‑holders waited for over 2 years before they applied for delivery of possession and there was no concealment on their part: So the application of the petitioners fails both on merits as well as on the question of limitation.

15. The Mule is accordingly, discharged, but in the circums tances of the case, I make no order as to costs. K. M. A. Rule discharged.