LexHIRENDRA NATH GORAI AND SUBAL CHANDRA SHAW AND OTHERS versus SUDHIR CHANDRA GHOSH AND OTHERS
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" 6 S.C;R. SUPREME COURT REPORTS 1001 Nothing has been placed before us to establish that the 1961 Superintending Engineer was legally authorized to enter into Karamshi l•tha- such a contract on behalf of the Government; nor do the bhai d ~ ocuments ex facie show that the agreement was expressed Stat< of Bombay to be made in the name of the Provincial Government. The Subba Rao J. letters mentioned the name of the Minister of the Public Works Department and also the Government, in the context of the rates that might be fixed thereafter, but the said documents did not purport to emanate from the Governor. At best they were issued under the directions of the Ministe_r. We find it difficult to stretch the point further, as such a construction will make the provisions of s. 175(3) of the Government of India Act, 1935, nugatory. We cannot, therefore, hold that either the contract was entered into by the person legally authorized by the Government to do so or expressed to be made in the name of the Governor. The agreement is void, as it has not complied with the provisions of s. 175(3) of the Government of India Act, 1935. In this view, it is not necessary to express our opinion '111 other interesting questions raised in this case. In the result, the appeal fails and is dismissed, but in the circumstances, without costs. Appeal dismissed. I>HIRENDRA NA TH GORAi AND SUBAL CHANDRA SHAW AND OTHERS v. SUDHIR CHANDRA GHOSH AND OTHERS (K. SUBBA RAo, K. C. DAS GUPTA AND RAGHUBAR DAYAL, JJ.) 1964 March 4. ~ Execution-Court salt of property in execution of a decree in respect o/ a loan-Judgment-debtor not objecting to valuation even after 1ervict of notice-Application for selling asidt tht 1al• on tht vourul of 1964 Dhirendranath Gorai v. 5udhir Chand1a Ghos/1 1002 SUPREME CO!JRT REPORTS no11-cu1npliance of the provisions of s. 35 · vf the Bengal Jo,,Jvney Lenders Act-Maintainability-Sale if, valid-Bengal AJoney Len- a·er~' Act, 1940 ( 10 of 1940), s: 35-Code of Civil Procedure, 1908 ( V of 1908), U.XXI, rr. 64, 66 and 90. ln execution of a decree passed in a mortgage suit, the appellant 11.n11exed in the execution application a Schedule comprising of J 1 pro- vertlC1' sought to be sold for the satisfaction of the claim. The appellant gave valuation of the said properties. Though the 1st responUent received a notice under 0.XXl, r. 66 of the Code· of Civil Procedure, be did not file any objection to the valuation. Though he got the sal.! adjourned a number of times promising to pay the decretal amount, be· failed to do so. Finally, two of the said properties were :sold. The l.!:il respondent then filed an application in the executing court for setting a~i<le, the saiO. sale unde:- O.XXI, r. 90 of the Code of Civil Procedure. inter aiia, on the ground that s. 35 of the Bengal Nloney·Lender's Act was not complied with. The learned subordinate Judge held that there was no fraua in publishing and conducting the ~ale, that the price of the lots sold was fair and that lhe s;.li~ was not vitiated by reason of 1nfringen1cnt of s. 35 of the A!.:t. On appeal, the High Court held that though there bad not been any substantial injury to the 1st respondent, the provisions of s. 35 of the Act were 111andatory and. therefore, the infringen1eut of the said provisions would invalidate the sale. In this Court it was contended on behalf of the appellants that whether s. 35 of the Act was mandatory or directory, the sale held in violation of the saiJ provision \Vas only illegal but not a nullity and, therefore, it could be set aside only in the manner and for the reasons prescribed in Q.XX:l, r. ~O 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 !).de could not be set aside at their instance. Held; The non-compliance with the provisions of s. 35 of the Acl J~ a defect or <.1 irregularity in publi~hing or conducting the sale. A pany 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 coul'd, the sale cannot be set aside unless by reason of the said defect or irregularity he bad sustained substantial injury. Ashrun1 Thikadar v. Vijay Singh Chopra, LL.R. (1944) l Cal. 166, distinguished. Al
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