HIRENDRA NATH GORAI AND SUBAL CHANDRA SHAW AND OTHERS versus SUDHIR CHANDRA GHOSH AND OTHERS

HIRENDRA NATH GORAI AND SUBAL CHANDRA SHAW AND OTHERS versus SUDHIR CHANDRA GHOSH AND OTHERS

Section 35 of the Bengal Money-Lenders Act, 1940 is intended solely for the benefit of the judgment-debtor and can be waived by him. Non-compliance with section 35 is an irregularity, not a nullity; sales cannot be set aside unless substantial injury resulting from such irregularity is proved and the party affected attended or objected at the proclamation.

Parties
Appellants: Dhirendranath Gorai and Subal Chandra Shaw and others; Respondents: Sudhir Chandra Ghosh and others
Jurisdiction
India
Judgment Date
04 March 1964
Procedural Posture
Civil Appeal / Appeal Decided by Supreme Court
Outcome
Appeals allowed
Legal Topics
Execution of Decrees, Court Sale, Money Lending Regulation, Mandatory Versus Directory Statutory Provisions, Waiver of Statutory Rights
Civil Procedure Property Law Banking and Finance Execution of Decrees Court Sale Money Lending Regulation Mandatory Versus Directory Statutory Provisions Waiver of Statutory Rights

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Parties

Dhirendranath Gorai and Subal Chandra Shaw and others

Appellants

Sudhir Chandra Ghosh and others

Respondents

Procedural Posture

Civil Appeal / Appeal Decided by Supreme Court

Legal Issues

  1. 1 Whether non-compliance with section 35 of the Bengal Money-Lenders Act, 1940 renders a court sale a nullity or merely an irregularity
  2. 2 Whether a party who received notice but did not object or attend at the proclamation can apply to set aside the sale for non-compliance of section 35
  3. 3 Whether the provisions of section 35 of the Bengal Money-Lenders Act, 1940 are mandatory or directory and capable of being waived by the judgment-debtor

Ratio Decidendi

Section 35 of the Bengal Money-Lenders Act, 1940 is intended solely for the benefit of the judgment-debtor and can be waived by him. Non-compliance with section 35 is an irregularity, not a nullity; sales cannot be set aside unless substantial injury resulting from such irregularity is proved and the party affected attended or objected at the proclamation.

Court Disposition

Appeals allowed

Orders

  • Orders of the High Court set aside; orders of the Additional Subordinate Judge restored.
  • Appellants to get their costs throughout from the 1st respondent.