os 85 and 86 of 1961
Appeals from the judgment and decree dated November 23 1954 of the Calcutta High Court in Appeals from Original Orders Nos 84 and 83 of 1953
B Sen and P K Ghosh for the appellants in both the appeals
Sukumar Ghosh for the respondents Nos 12 and 13 in CA No 85 of 1961
March 4 1964
The Judgment of the Court was delivered by SUBBA RAO J
These two appeals raise the question of the validity of the court sale held in contravention of section 35 of the Bengal Money Lenders Act 1940 Bengal Act X of 1940 hereinafter called the Act
The facts in both the appeals may be briefly stated
In Civil Appeal No 85 of 1961 Sudhir Chandra Ghosh respondent No 1 executed a first mortgage in favour of one Provash Chandra Mukherjee since deceased for a sum of Rs 12000 
Respondent No 1 executed a second third and fourth mortgages in favour of the appellant for a total sum of Rs 7700 
He also executed another mortgage in favour of the 9th respondent
In the year 1948 respondents 2 and 3 representing the first mortgagee s estate filed Title Suit No 8 of 1948 in the 7th Additional Court of the Subordinate Judge at Alipore for enforcing the first mortgage
To that suit the puisne mortgagees were also made parties
On May 24 1948 a preliminary decree by consent was made in the suit whereunder the judgment 1004 debtor was directed to pay a sum of Rs 15473 7 9 to the appellant in 7 equal annual instalments
As the judgment debtor failed to pay the said amount in due course a final decree was passed in the mortgage suit on or about February 2 1949
Thereafter the decree was put in execution on January 31 1950 and in the said execution application a schedule of properties sought to be sold for the satisfaction of the said claim was annexed
The schedule comprised 11 properties and the appellant gave valuation of the said properties
Though the 1st respondent received a notice under O XXI r 66 of the Code of Civil Procedure he did not file any objection to the valuation
Though the first respondent got the sale adjourned a number of times promising to pay the decretal amount he failed to do so
Finally two of the said properties were put up for sale on June 23 1951 and one of the said properties was purchased by the 12th respondent for a sum of Rs 11800 and the other by the 13th respondent for a sum of Rs 10100 
On July 21 1951 the 1st respondent filed an application in the executing court for setting aside the said sale under O XXI r 90 of the Code of Civil Procedure inter alia on the ground that section 35 of the Act was not complied with
The learned Subordinate Judge held that there was no fraud in publishing and conducting the sale that the price of the lots sold was fair and that the sale was not vitiated by reason of infringement of section 35 of the Act
On appeal a Division Bench of the High Court held that though there had not been any substantial injury to the 1st respondent the provisions of section 35 of the Act were mandatory and therefore the
infringement of the said provisions would invalidate the sale
In that view it set aside the sale and directed the appellant to refund the money with interest
Civil Appeal No 86 of 1961 also arises out of the same execution proceedings
Under the said compromise preli minary decree the judgment debtor agreed to pay the decretal amount of Rs 25687 to the executors of the estate of the first mortgagee respondents 2 and 3
As the amount was not paid the said respondents filed an application in the 7th Court of the Additional Subordinate Judge Alipore for the execution of the said decree
In the 1005 execution petition 8 properties were described and their valuations were given
The judgment debtor filed objections to the valuations given by the decree holders but on the date fixed for settling the valuations of the said properties neither the judgment debtor nor his advocate appeared in court
The learned Subordinate Judge by his order dated February 11 1950 directed that both the valuations of the decreeholders and the judgment debtor be noted in the sale proclamation
Thereafter the sale proclamation was duly issued and the date of the sale was fixed for May 11 1950
The judgment debtor took as many as 15 adjournments of the sale promising to pay the decretal amount but did not do so
Finally the sale of the properties was fixed for June 23 1951 and on that date two lots of the property were sold in execution and the appellants purchased lot No 1 at a price if Rs 14000 and respondent No 9 purchased Lot No 2 at a price of Rs 19600 
On July 21 1951 the 1st respondent filed an application before the learned Subordinate Judge for setting aside the sale under O XXI r 90 of the Code of Civil Procedure on grounds similar to those raised in the other application the subject matter of Civil Appeal No 85 of 1961
The said application was heard by the learned Subordinate Judge along with the said other application
For the same reasons he dismissed the application
On appeal the Division Bench of the High Court heard the appeal along with the connected appeal and set aside the sale
The present appeals are filed by certificate against the common judgment of the High Court in both the matters
Mr Sen learned counsel for the appellants in both the appeals contends that whether section 35 of the Act is mandatory or directory the sale held in violation of the said provision is only illegal but not a nullity and therefore it can be set aside only in the manner and for the reasons prescribed in O XXI r 90 of the Code of Civil Procedure and further that as the respondents did not attend at the drawing up of the proclamation of sale the sale cannot be set aside at their instance
To appreciate the argument it is necessary and convenient to read at the outset the relevant provisions of the Act and the Code of Civil Procedure
1006 Section 35 of the Act
Notwithstanding anything contained in any other law for the time being in force the proclamation of the intended sale of property in execution of a decree passed in respect of a loan shall specify only so much of the property of the judgment debtor as the Court considers to be saleable at a price sufficient to satisfy the decree and the property so specified shall not be sold at a price which is less than the price specified in such proclamation  Provided that if the highest amount bid for the property so specified is less than the price so specified the Court may sell such property for such amount if the decree holder consents in writing to forego so much of the amount decreed as is equal to the difference between the highest amount bid and the price so specified
 CODE OF CIVIL PROCEDURE Order XXI r 64 Any Court executing a decree may order that any property attached by it and liable to sale or such portion thereof as may seem necessary to satisfy the decree shall be sold and that the proceeds of such sale or a sufficient portion thereof shall be paid to the party entitled under the decree to receive the same
Order XXI r 66
1 Where any property is ordered to be sold by public auction in execution of a decree the Court shall cause a proclamation of the intended sale to be made in the language of such Court
2 Such proclamation shall be drawn up after notice to the decree holder and the judgment 1007 debtor and shall state the time and place of sale and specify as fairly and accurately as possible a the property to be sold Order XXI r 90
1 Where any immovable property has been sold in execution of a decree
the decree holder or any person entitled to share in a rateable distribution of assets or whose interests are affected by the sale may apply to the Court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it or on the ground of failure to issue notice to him as required by rule 22 of this Order  Provided i that no sale shall be set aside on the ground of such irregularity fraud or failure unless
upon the facts proved
the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity fraud or failure
ii that no sale shall be set aside on the ground of any defect in the proclamation of sale at the instance of any person who after notice did not attend at the drawing up of the proclamation or of any person in whose presence the proclamation was drawn up unless objection was made by him at the time in respect of the defect relied upon
Under O XXI
r 64 of the Code of Civil Procedure the executing court may order that any property attached by it and liable to sale or such portion thereof as may seem necessary to satisfy the decree shall be sold
Under r 66 of the said Order of the Code when a property is ordered to be sold in public auction in execution of a decree the court shall cause a proclamation of the intended sale to be made and such proclamation shall specify as fairly and accurately as possible among others the property to 1008 be sold and such proclamation shall be drawn up after notice to the decree holder and the judgment debtor under sub r
4 thereof the court may summon and examine any person or require him to produce any document in his possession or power relating thereto
Under the said provisions the court has power to direct the sale of the entire property attached or a part thereof sufficient to satisfy the decree and it shall also specify the said property directed to be sold in the proclamation fixed after giving notice to both the decree holder and the judgment debtor
Under section 35 of the Act a duty is cast upon the court in settling the pro clamation of the intended sale of property in execution of a decree passed in respect of a loan to which the Act applies to specify only so much of the property of the judgment debtor as the court considers to be saleable at a price sufficient to satisfy the decree and not to sell the property so specified at a price which is less than the price so specified in such proclamation
This provision is in effect a statutory addition to O XXI r 66 of the Code of Civil Procedure
Indeed this provision could have been added as another clause to the said rule
This statutory provision pertains to the field of proclamation
The rule says so in terms
The said two conditions are also steps to be taken by the court in the matter of publishing or conducting the sale
If a sale is held without complying with the said conditions what is the remedy open to a party affected thereby to get the sale set aside Order XXI r 90 of the Code in terms provides for the remedy
It says that a person whose interests are affected by the sale may apply to the court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it or on the ground of failure to issue notice to him as required by r 22 of the Order
As the non compliance with the said conditions is a material irregularity in publishing or conducting the sale the court under the first proviso to O XXI r 90 of the Code cannot set aside the sale unless it is satisfied that the applicant had sustained substantial injury by reason of such irregularity
That apart under the second proviso to the said rule no sale shall be set aside on the ground of any defect in the proclamation of sale at the instance of any person who after notice did not attend at the drawing up 1009 of the proclamation or of any person in whose presence the proclamation was drawn up unless objection was made by him at the time of drawing up of the proclamation in respect of the defect relied upon
Shortly stated the noncompliance with the provisions of section 35 of the Act is a defect or a irregularity in publishing or conducting the sale
A party who received the notice of the proclamation but did not attend at the drawing up of the proclamation or did not object to the said defect cannot maintain an application under O XXI r 90 of the Code of Civil Procedure
Even if he could the sale cannot be set aside unless by reason of the said defect or irregularity he had sustained substantial injury
On this question a divergence of views is reflected in the decisions cited at the Bar
Mukherjea and Pal JJ in Asharam Thikadar vs Bijay Singh Chopra1 set aside the order of the executing court and sent the case back to that court as the said court inserted in the proclamation the valuation of the property given by the judgment debtor as well as that given by the decree holder and did not as it should do under section 3 5 of the Act determine the price of the property which was to be put up for sale on proper evidence
This decision has no relevance to the question raised before us as the appeal before the High Court was against the order made by the executing court dismissing the application filed by the judgment debtor requesting the court to demarcate the property to be sold pursuant to the provisions of section 35 of the Act
The question whether a sale held in non compliance with the said provisions could be set aside de hors the provisions of O XXI r 90 of the Code of Civil Procedure did not arise for consideration therein
The question now posed before us directly arose for decision before a Division Bench of the Calcutta High Court consisting of Akram and Chakravartti JJ in Manindra Chandra vs Jagadish Chandra 2 Chakaravartti J met the objection raised by the judgment debtor who sought to set aside the sale on the ground of non compliance with the provisions of section 3 5 of the Act thus  1 II R 134 159 SC 64 2 270
1010 It section 35 of the Act is a provision relating to the contents of the sale proclamation and its effect to my mind is to amend or supplement Or
21 r 66 2 a which directs the Court to specify in the sale proclamation the property to be sold
Any objection regarding non compliance with sec
35 in specifying the property to be sold is in my view a defect in the sale proclamation within the meaning of the second proviso to Or 21 r 90 CPC
It follows that an objection that the sale proclamation did not conform to sec
35 of the Bengal MoneyLenders Act cannot avail a judgment debtor in an application under Or
2 1 r 90 if he was present at the drawing up of the sale proclamation and did not raise any such objection at the time nor can it avail a judgment debtor who after receiving notice did not attend at the drawing up of the sale proclamation at all
 We agree with this reasoning
Another Division Bench of the Calcutta High Court consisting of Guha and Banerjee JJ in Maniruddin Ahmed vs Umaprasanna1 considered the entire case law on the subject including the decision now under appeal and differed from the view expressed by section R Das Gupta and Mallick JJ in the decision now under appeal and agreed with the view expressed by Akram and Chakravartii JJ in Manidra Chandra vs Jagdish Chandra 2
The said decisions are in accord with the view we have expressed earlier
The contrary view is sustained by the High Court in the present case on the principle that the sale held in contravention of the provisions of section 35 of the Act was a nullity and therefore no question of setting aside the sale within the meaning of O XXI r 90 of the Code of Civil Procedure would arise
This raises the question whether such a sale is a nullity
If a provision of a statute is only directory an act done in contravention of the provision is manifestly not a nullity
Section 35 of the Act is couched in a mandatory form and it casts in terms a duty on the court to comply with its 1 2  270
1011 provisions before a sale is held
Prima facie the provision is mandatory at any rate we shall assume it to be so for the purpose of these appeals
Even then the question arises whether an act done in breach of the mandatory provision is per force a nullity
In Ashutosh Sikdar vs Behari Lal Kirtania1 Mookerjee J after referring to Macnamara on Nullity and Irregulari ties observed  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
 Whether a provision falls under one category or the other is not easy of discernment but in the ultimate analysis it depends upon the nature scope and object of a particular provision
A workable test has been laid down by Justice Coleridge in Holmes vs Russell2 which reads 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
 A waiver is an intentional relinquishment of a known right but obviously an objection to jurisdiction cannot be waived for consent cannot give a court jurisdiction where there is none
Even if there is inherent jurisdiction certain provisions cannot be waived
Maxwell in his book On the 1 Cal
61 72
2 1012 Interpretation of Statutes 11th Edn at p 375 describes the rule thus Another maxim which sanctions the non observance of a statutory provision is that cuilibet licet renuntiare juri pro se introducto
Everyone 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 which may be dispensed with without infringing any public right or public policy
 The same rule is restated in Craies on Statute Law 6th Edn at p 269 thus  As a general rule the conditions imposed by statutes which authorise legal proceedings are treated as being indispensable to giving the court jurisdiction
But if it appears that the statutory conditions were inserted by the legislature simply for the security or benefit of the parties to the action themselves and that no public interests are involved such conditions will not be considered as indispensable and either party may waive them without affecting the jurisdiction of the court
 The Judicial Committee in AL
Vellayan Chettiar vs Government of Madras1 pointed out that there was no inconsistency between the propositions that the provisions of section 80 of the Code of Civil Procedure were mandatory and must be enforced by the court and that they might be waived by the authority for whose benefit they were provided
In that case the Judicial Committee held that section 80 of the Code of Civil Procedure was explicit and mandatory but still it held that it could be waived by the authority for whose benefit that was provided
This aspect of the law in the context of section 35 of the Act was considered by a Division Bench of the Calcutta High Court in Gaya Prosad vs Seth 1 1947 LR 74 IA 223 228
1013 Dhanrupwal Bhandari1
Dealing with this argument P N Mookerjee J speaking for the court observed  It is true that section 35 of the Bengal MoneyLenders Act casts a duty upon the court but such duty is solely for the benefit the private benefit of the judgment debtor
It is therefore open to him to waive this benefit or in other words to waive his objection of nonobservance of that statutory provision by the court
Guha and Banerjee JJ expressed much to the same effect in Maniruddin Ahmed vs Umaprasanna2 thus at p 30 The Bengal Money Lenders Act 1940 enacted for the purpose of making better provision for the control of money lenders and for the regulation and control of money lending has certainly a public policy behind it
But some of its provisions and section 35 one of them are intended for the benefit of the individual judgment debtors and have no public policy behind them
Such provisions may be waived by the person for whose benefit the same were enacted A Division Bench of the Patna High Court in Sheo Dayal Narain vs Musammat Moti Kuer3 speaking through Meredith J in the context of the provisions of section 13 of the Bihar Money Lenders Regulation of Transactions Act 1939 which are pari materia with the provisions of section 35 of the Bengal Money Lenders Act 1940 rejected the contention that a sale held in contravention thereof was a nullity in the following words Illegal the sale may have been in the limited sense that it was held in a manner at variance with a mandatory statutory provision
That provision however has no reference at all to the jurisdiction of the Court
It affords no foundation for 1 508
2 3 Pat
281 286
1014 the contention that the sale was one which the Court concerned had no power at all to hold
 Where the court acts without inherent jurisdiction a party affected cannot by waiver confer jurisdiction on it which it has not
Where such jurisdiction is not wanting a directory provision can obviously be waived
But a manda tory provision can only be waived if it is not conceived in the public interests but in the interests of the party that waives it
In the present case the executing court had inherent jurisdiction to sell the property
We have assumed that section 3 5 of the Act is a mandatory provision
If so the question is whether the said provision is conceived in the interests of the public or in the interests of the person affected by the non observance of the provision
It is true that many provisions of the Act were conceived in the interests of the public but the same cannot be said of section 35 of the Act which is really intended to protect the interests of a judgment debtor and to see that a larger extent of his property than is necessary to discharge the debt is not sold
Many situations may be visualized when the judgment debtor does not seek to take advantage of the benefit conferred on him under section 3 5 of the Act for instance if the part of the property carved out by the court for sale is separated from the rest of his property the value of the remaining property may be injuriously affected by the said carving out in which case the judgment debtor may prefer to have his entire property sold so that he may realize the real value of the property and pay part of the sale price towards the decretal amount
He cannot obviously be compelled to submit to the sale of a part of the property to his disadvantage
A provision intended for his benefit cannot be construed in such a way as to work to his detriment
But it is said that the proviso to section 35 of the Act indicates a contrary intention
Under that proviso if the highest amount bid for the pro perty so specified is less than the price so specified the Court may sell such property for such amount if the decree holder consents in writing to forego so much of the amount decreed as is equal to the difference between the highest bid and the price so specified
This is only an option given to the decree holder  he may exercise this option if he does 1015 not like to go through the entire sale proceedings overagain
In one contingency this proviso also Works for the benefit of the judgment debtor for he will be relieved of part of his indebtedness
But anyhow this does not show that the main provision is not intended for the benefit of the judgment debtor
We are therefore satisfied on a true construction of section 3 5 of the Act that it is intended only for the benefit of the judgment debtor and therefore he can waive the right conferred on him under section 35 of the Act
If that be the legal position O XXI r 90 of the Code of Civil Procedure is immediately attracted
The concurrent finding of the courts is that by reason of the non observance of the provisions of section 35 of the Act no substantial injury was caused to the judgment debtor
Further though notice was given to the judgment debtor in one case he did not file objections at all and in the other case though the judgment debtor filed objections he did not attend at the drawing up of the proclamation
The sales are therefore not liable to be set aside under the terms of the said provision
In the result the orders of the High Court are set aside and those of the Additional Subordinate Judge are restored
The appellants will get their costs throughout from the 1st respondent
There will be one set of hearing fee
Appeals allowed


Summary:
In execution of a decree passed in a mortgage suit the appellant annexed in the execution application a Schedule comprising of 11 properties sought to be sold for the satisfaction of the claim
The appellant gave valuation of the said properties
Though the 1st respondent received a notice under OXXI r 66 of the Code of Civil Procedure he did not file any objection to the valuation
Though he got the sale adjourned a number of times promising to pay the decretal amount he failed to do so
Finally two of the said properties were sold
The 1st respondent then filed an application in the executing court for setting aside the said sale under OXXI r 90 of the Code of Civil Procedure inter alia on the ground that section 35 of the Bengal Money Lender s Act was not complied with
The learned subordinate Judge held that there was no fraud in publishing and conducting the sale that the price of the lots sold was fair and that the sale was not vitiated by reason of infringement of section 35 of the Act
On appeal the High Court held that though there had not been any substantial injury to the 1st respondent the provisions of section 35 of the Act were mandatory and
therefore the infringement of the said provisions would invalidate the sale
In this Court it was contended on behalf of the appellants that whether section 35 of the Act was mandatory or directory the sale held in violation of the said provision was only illegal but not a nullity and therefore it could be set aside only in the manner and for the reasons prescribed in OXXI r 90 of the Code of Civil Procedure and further that as the respon dents did not attend at the drawing up of the proclamation of sale the sale could not be set aside at their instance
Held The non compliance with the provisions of section 35 of the Act is a defect or a irregularity in publishing or conducting the sale
A party who received the notice of the proclamation but did not attend at the drawing up of the proclamation or did not object to the said defect cannot maintain an application under OXXI r 90 of the Code of Civil Procedure
Even if he could the sale cannot be set aside unless by reason of the said defect or irregularity he had sustained substantial injury
Ashram Thikadar vs Vijay Singh Chopra ILR 1944 1 Cal
166 distinguished
Manindra Chandra vs Jagdish Chandra and Maniruddin Ahmed vs Umanprasamma1959  approved
On a true construction of section 35 of the Act it must be held that it was intended only for the benefit of the judgment debtor and therefore he could waive the right conferred on him under section 35 of the Act
Case law reviewed
1003 If that be the legal position OXXI
r 90 of the Code of Civil Procedure is immediately attracted
The concurrent finding of the courts is that by reason of the non observance of the provisions of section 35 of the Act no substantial injury was caused to the judgment debtor
Fur ther though notice was given to the judgment debtor  in one case he did not file objection at all and in the other case though the judgment debtor filed objections he did not attend at the drawing up of the proclamation
The sales are therefore not liable to be set aside under the terms of the said provision