Patna High Court
Harnandan Singh vs Aditya Narain Singh And Ors. on 13 October, 1961
Equivalent citations: AIR1962PAT221, AIR 1962 PATNA 221
JUDGMENT Raj Kishore Prasad, J.
1. These four applications in revision, under Section 115 of the Code of Civil Procedure, hereinafter referred to as 'The Code", arise out of an equal number of execution cases and an equal number of objections filed by the petitioner and others in those cases.
2-3. In all these four cases, the decree-holders were the same, but the judgment-debtors were different. In this Court, however, in all the four cases, the petitioner is one and the same person, namely, Harnandan Singh, one of the Judgment-debtors, and, the opposite parties, who are the decree-holders auction-purchasers, are also the same persons. As some common questions of law arise in all these four cases they have been heard together, and, therefore, this judgment will govern them all.
4. Civil Revision 1096, 1098 and 1099. In these three cases, the facts are the same: The sales of the properties of the petitioner and others were held on the 15th November, 1954, and, the decree-holders opposite parties themselves purchased them at the auction sales. The sales were confirmed on the 15th December, 1954. On the 20th April 1955, three different applications were made by different Judgment-debtors, under Order 21, Rule 90 of the Code, for setting aside the sale. The said applications were rejected on the 15th February, 1956, and, the said order confirming the sales was upheld on appeal by the District Judge on the 31st October, 1957.
5. The decree-holders, auction-purchasers, then, on the 12th July, 1958, after about three and a half years of the confirmation of the sales, fi'ed sale certificate stamps in each case, for preparation of the sale certificate, as required by Rule 94, as amended by this Court, of Order 21 of the Code. On the 11th August, 1960, the Court directed the preparation of the sale certificate in cach case and handing over of the same to the dccree-holders auction-purchasers opposite parties. On the 23rd August, 1960, the sale certificate Was prepared in each of these three cases, and, was sealed and signed, and handed over on the 29th August, 1960, to the opposite parties.
6. On the 29th August, 1960, an application purporting to be under Sections 47 and 151 and under Order 47, Rule 1 of the Code, was filed in each of these three cases by the petitioner and others praying therein to recall the order passed by the court below earlier on the 11th August 1960, directing the preparation of the sale certificates, as it had been passed behind their back, without any notice to them, and to set aside the sale in each case for non-compliance, by the auction-purchasers, of the mandatory provisions of the amended Rule 94 of Order 21, of the Cede. These objections were heard and rejected by the Court below on the 19th September, 1960, by a separate order in each case.
7. The auction-purchasers, after obtaining the sale certificates, applied on the 19th September, 1960, in Civil Revision 1096 of 1960, for delivery of possession, and the Court below on the 30th November, 1960 directed the issue of delivery of possession, in that case, fixing the 22nd, December, 1960 for service return. The petition of the petitioner and others filed on the 9th December 1960, in the said case, for recalling the earlier order directing the issue of delivery of possession, was rejected by the Court below on the same day, i.e. on the 9th December, 1960, on the ground that the delivery of possession had already been given, and, thereafter, the proceeding for delivery of possession was disposed of on the 22nd, December, 1960.
8. In C. R. 1097 of 1960, the application for delivery of possession was made on the 29th October, 1960; and in C. Rule 1098 of 1960, a similar application was made on the 19th September, 1960 The further ordersheets of these two cases have not been sent up, and, therefore, the date of delivery of possession in these two cases is not known. Hut it was conceded, on behalf of the petitioner, that in each of these three cases also delivery of possession has actually been given to the opposite parties.
9. It may be mentioned that the petitioner, in each case, has come up in revision only against the order dated the 19th September, 1960, of the Court below and not against its order dated the 30th November, 1960, directing issue of delivery of possession.
10. Civil Revision 1097: In this case, the facts are a little different: The sale was held on the 15th February, 1955, aud, the decree-holders were the auction-purchasers at the said auction sale. The sale was confirmed on the 19th March 1955. Sale certificate stamps for preparation of the sale certificate, however, were filed on the 22nd, August, 1960, after about five years from the confirmation of the sale. In this case, there was no proceeding for setting aside trie sale under Order 21, Rule 90 of the Code. On the filing of the said stamps, the Court below asked is sheri-shtadar to check and report by the 30th of August, 1960. Before that date, however, that is, a day earlier, on the 29th August, 1960, an application purporting to be under sections 47 and 151 of the Code, was filed by the petitioner of this case to refuse to grant the sale certificate, or to set aside the sale in accordance with the provisions of the amended Rule 94 of Order 21 of the Code for its non-compliance.
11. This objection was considered and rejected, along with the other three objections in the other three oases, on the same clay, that is, on the 19th September, 1960, and, by that order the court directed the sale certificates to be prepared and handed over to the auction-purchasers,
12. In this case also, on the 29th October, 1960, an application was made by the auction-purchasers, opposite party, for delivery of possession, but, on the 7th November, 1960, the Court below observed that the application appeared to be barred under Article 180 of the Limitation Act, and, therefore, directed that the matter should be put up later in presence of the lawyer for the auction-purchasers with the result that delivery of possession has not yet been given in the present case.
12A. The petitioner, thereafter, moved this Court in revision against the said order of September 19, 1960, and obtained a rule in each ot thess four cases.
13. In all these cases, we are really concerned only with the interpretation of Rule 94, as amended by the Patna High Court, of Order 21 of the Code. The amended Rule 94 of Order 21, in in these terms :
"Where a sale of immovable property h is become absolute, the auction-purchaser shall file the sale certificate stamp within fifteen days from the date of confirmation of the sale, and the Court shall grant a certificate specifying the property sold and the name of the person who at the time of sale is declared to be the purchaser. Such certificate shall bear date the day on which the sale became absolute. If the necessary st imp for the sale certificate is not filed within the prescribed period the sale may, if the Court thinks fit, be set aside."
14. In support of the rules, the argument, put forward by Mr. J.C. Sinha, was (1) that the period of fifteen days for filing the sale certificate stamp having been fixed by the rule itself, the Court had no jurisdiction to extend it or to accept the said stamp if filed after the expiry of that period and to direct the preparation of the sale certificate; (2) that the applications of the petitioner for setting aside the sales were in accordance with the amended Rule 94 of Order 21 of th Code, and, therefore, they had been wrongly rejected on the ground that the power to set aside the sale was discretionary and rested with the Court; (3) that if after the expiry of the period prescribed by Rule 94 of Order 21 for filing the sale certificate stamps, the Court accepts the said stamp, its order accepting the same is a judicial act, and, therefore, it could not be passed without a notice to the petitioner; (4) that the word 'may' used in Rule 94 has the meaning of 'must', and, therefore, the sale should have been set aside for non-compliance of Rule 94 of Order 21; and (5) that the Court had no jurisdiction to deliver possession beyond three years as provided by Article 180 of the Limitation Act, and, thererfore, the order directing delivery of possession in the first three cases should be set aside, as the remedy of the petitioners for delivery of possession was only by a suit for possession.
15. In reply, it was contended by Mr. Satyanand Kumar, appearing for the auction-purchasers, opposite party, (1) that the preparation of the sale certificate was a ministerial act, as held by a Division Bench of this Court in F.F. Christen v. Prasad Raut, AIR 1925 Pat 615, and, therefore, the preparation of the sale certificate not being a judicial act, the petitioners were not entitled to any notice or to file an objection thereto; (2) that the amended Rule 94 of Order 21 was directory, and not mandatory and, therefore the Court had discretion in accepting the sale Certificate stumps, and, in directing the preparation of the sale certificates, even after the expiry of the period prescribed by the rule; (3) that under Section 65 of the Code the property sold in execution of a decree, on its having become absolute, vests in the purchaser from the time when the property is sold and under Rule 92 (1) of Order 21, of the Code, on confirmation of the sale, it becomes absolute, and therefore, the provision in Rule 94 of Order 21 vesting the Court with the power to set" aside the sale, even after it has become absolute, is ultra vires, as it travels beyond Section 65 of the Code, and, as such, there being a conflict between Section 65 and Rule 94 of Order 21, the section must prevail as held by a Full Bench of the Nagpur High Court in Ramdeyal Munnalal v. Sheodayal, AIR 1939 Nag 186 : ILR (1939) Nag 250; and (4) that as delivery of possession has already been given in the first three cases and the Court below has exercised its discretion in refusing to set aside the sales, this Court should net interfere with the said discretion.
16. On the arguments presented at the Bar, the crucial questions, which, in my opinion, are the crux of the whole matter, are:
First, whether the provision for filing sale certificate stamps within fifteen days, as provided by the amended Rule 94 of Order 21 of the Code, is mandatory Or directory, and, Secondly, whether the power vested in the executing Court, by the amended Rule 94 of Order 21 of the Code, to set aside the sale is mandatory or directory?
17. On the answer of the above questions, which are the real issues in these cases, will depend the answer of the several points raised by the learned counsel for the parties.
17a. In order, however, to resolve the issues involved, it is necessary to know, first, the principles of construction of a Statute on the question" as to whether a certain provision in it is mandatory or directory. On this question, Mr. Sinha strongly relied on Section 262 of Crawford's Construction of Statutes (1940 Edition) in support of his contention that the word "shall" should be given its natural meaning and, therefore, it should be constructed as mandatory, and, that the word 'may', in view of the intention of the Legislature, should also be construed as mandatory. In the said book at page 519-520, the following passage occurs :
"Ordinarily, the words "shall" and "must" are mandatory, and the word "may" is directory, although they are often used interchangeably in legislation. This use without regard to their literal meaning generally makes it necessary for the Courts to resort to construction in order to discover the real intention of the Legislature. Nevertheless it will always be presumed by the Court hat the Legislature intended to use the words in heir usual and natural meaning. If such a meaning, however, leads to absurdity, or great inconvenience, or for some other reason is clearly contrary to the obvious intention of the Legislature, then words which ordinarily are mandatory in their nature will be construed as directory or vice versa."
A Statute passed for the purpose of enabling some thing to be done, is usually expressed in permissive language, that is to say, it is enacted like that "such and such a thing may be done" or the like. Prima facie, the word "may" imports a discretion, and it must be construed as discretionary unless there be something in the subject-matter to which it is applied or in any other part of the Statute to show that it was meant to be imperative: Craise on Statute Law, 5th edition at page 263.
18. The test to determine whether a provision in a Statute is mandatory or directory has now been, well settled by several decisions of the Supreme Court, such as, Hari Vishnu Kamath v. Ahmad Ishaque, (S) AIR 1955 SC 233; Tirath Singh, v. Bachittar Singh, (S) AIR 1955 SC 830; Hazari Mal Kuthala v. Income-tax Officer, Special Circle, Ambala Cantt., AIR 1961 SC 200; and Banwarilal Agarwalla v. State of Bihar, AIR 1961 SC 849.
19. The well-established canons of construction of a Statute which emerge from the above authorities, are these:
An enactment in form mandatory might in substance be directory. The use of the word "shall" does not conclude the matter. This rule, as other rules, however, are only aids for ascertaining the true intention of the Legislature, which is the determining factor, and, that must ultimately depend on the context. Therefore, though the word "shall" is ordinarily mandatory, it is sometimes not so interpreted if the context or the intention otherwise demands. It is, therefore, the duty of the Court to try to get at the real intention of the Legislature by carefully attending to the whole scope of the Statute to be construed. Where, therefore the language of a Statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment or some inconvenience or absurdity, hardship or injustice, which presumably was not intended, a construction may be put upon it which modifies the meaning of the word, and even the structure of the sentence. It is the substance that counts and must take precedence over mere form. Some rules are vital and go to the root of the matter; they cannot be broken; others are only directory and a breach of them can be overlooked provided there is substantial compliance with the rules read as a whole and provided no prejudice ensues; and when the Legislature does not itself state which is which judges must determine the matter, and exercising a nice discrimination sort out one class from the other along broad based common sense lines.
20. In the above connection, his Lordship, K.C. Das Gupta J., in delivering the unanimous opinion of the Constitution Bench of the Supreme Court, in AIR 1961 SC 849 (supra) on an appeal from this Court, at page 851 observed:
"........No general rule can be laid down for deciding whether any particular provision in a statute is mandatory, meaning thereby that nonobservance thereof involves the consequence of invalidity or only directory, i.e.. a direction the non-observance of which does not entail the consequence of invalidity whatever other consequences may occur, iiut in each case the Court has to decide the legislative intent. Did the Legislature intend in making the statutory provisions that non-observance of this would entail invalidity or did it not? To decide this we have to consider not only the actual words used but the scheme of the statute, the intended, benefit to public of what is enjoyed by the provisions and the material danger to the public by the contravention of the same."
21. Keeping in view the above cordial principles of construction of a statute, which lay down the true test, let us now examine, in the instance case the provisions of the amended Rule 94 of Order 21 of the Code.
22. It would be useful, however, to know, first, the scheme of the Code with regard to Court sales of immoveable property, and, then, to ascertain, in that background, the intention of the Patna High Court in enacting the amendment, under consideration in Rule 94 of Oder 21 of the Code.
23. Rule 85 of Order 21 provides that on every sale of immoveable property the full amount of purchase-money shall be paid by the auction purchaser before the Court closes on the fifteenth day from the sale of the property and, then, Rule 86 of Order 21 says that in default of such payment, within the period prescribed, the property shall be resold, Rules 89 to 91 of Order 21 of the Code provide the several modes for petting the sale set aside, on different grounds, by different persons, mentioned therein, after it has been sold and its full purchase-money had been paid by the auction-purchaser as required by Rule 85 of Order 21 of the Code.
24. Sub-rule (1) of Rule 92 of Order 21 then provides that when no application is made under Rule 89, Rule 90 or Rule 91, or where such application is made and disallowed, the Court shall make an order confirming the sale, and thereupon, the sale shall become absolute. Sub-rule (3) of Rule 92 of Order 21 further provides that no suit Jo set aside an order made under Rule 92 shall be brought by any person against whom such order is made. Section 65 of the Code, then, lays down that where immoveable property is sold in execution of a decree and such sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when the property is sold and not from the time when the sale becomes absolute.
25. It is manifest, therefore, that when the sale becomes absolute, as contemplated by Sub-rule (1) of Rule 92 of Order 21, the property sold at the auction sale in execution of a decree vests in the purchaser from the time when the property is sold and not from the time when the sale becomes absolute, as provided by Section 65 of the Code.
26. In view of the above scheme of the Code, and its above provisions, could it bs said that the use of the word "shall" and the use of the word "may", in the two provisions of the amended Rule 94 of Order 21, reproduced in extenso earlier, make the said relevant, provisions mandatory?
27. In my view, they do not. Their Lordships of the Supreme Court, in Sangram Singh v. Election Tribunal Kotah, (S) AIR 1955 SC 423, observed that a Code of Procedure must be regarded as such; it is procedure designed to facilitate justice and further its ends; not a penal enactment for punishment and penalty; not a thing designed to trip people up, and, therefore, too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore, be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it. In interpreting the provisions under consideration of the amended Rule 94 of Order 21, in the present case, the relevant provisions have to be read not in vacuo, as occurring in the Code, but in a single complex rule in which one part may throw light on another. It is well-settled that a sale certificate is only an evidence of title which has already vested in the purchaser under Section 65 of the Code. The action of the Court in granting a sale certificate as required by Rule 94, Order 21, is a ministerial act, and not a judicial one:
28. In this view of the matter, in my opinion, the word, "shall", used in the expression, "the auction purchaser shall file the sale certificate stamp within fifteen days from the date of confirmation of sale", occurring in Rule 94, read before, must be deemed to be directory, and not mandatory. It should be borne in mind that this provision has been made only to secure the revenue of the State. If the word, "shall", referred to above, is given its ordinary and natural meaning and construed to be mandatory it "will lead to absurdity, and to a manifest contradiction of the apparent purpose of the Code, which undoubtedly was not intended by it. How can the title of the auction-purchaser, when the sale has become absolute under Rule 92 (1) of Order 21, and title in the property sold has vested in him under Section 65 of the Code from the date of the sale, be defeated and negatived for non-preparation of the sale certificate for not filing the sale certificate stamp within the time allowed by the said Rule 94? By the default of the auction-purchaser in not filing the sale certificate stamp, the only person affected is the auction-purchaser himself and none else, because of his default there is the consequential delay in the issue of the sale certificate to him. By such default, neither the decree-holder, nor the judgment-debtor, if a stranger is the auction-purchaser, is in any way prejudicially affected, and, consequently, the non-filing of the sale certificate stamp, within the required time, does not make any difference in the matter of the sale that has been validly held and when the full amount of the purchase-money payable as required by Rule 95 of Order 21, has been paid by the auction-purchaser, within the time allowed, and the sale has become absolute and the title has vested in the auction-purchaser.
29. It is true that non-payment of the Purchase-money, as required by Rule 85 of Order 21 on the part of the defaulting purchaser, renders the sale proceedings a complete nullity, because the very fact that the Court, in such a case, is bound to re-sell the property, required by Rule 80 of Order 21, in the event of such a default, show that the previous proceedings for sale are completely wiped out as if they do not exist in the eye of law: Manilal Mohanlal v. Sayed Ahmad, AIR 1954 SC 349. Here, however, that is not the position. There, in a case under Rule 85, Order 21, the Court has no jurisdiction to extend the time for payment of the purchase-money, as contemplated by Rule 85 of Order 21 of the Code. But, here, that is not so. By the non-filing of the sa'e certificate stamp by the auction-purchaser, the sale is not wiped out, nor does it become a complete nullity and non-existent. The default on the part of the auction-purchaser, in not filing the sale certificate stamp within the prescribed time, does not at all affect ihe validity of the sale which two become absolute, and it does not ipso facto result in the wiping out of the sale as is the case under Rule 86 of Order 21 of the Code. The amended Rule 94 of Order 21 cannot be construed to have the effect of nullifying the effect of Rule 92 of Order 21 and Section 65 of the Code. Taking into consideration, therefore, the intention of this Court in enacting the said amendment in Rule 94 of Order 21, it cannot be said that if an auction-purchaser has not with him the sale certificate, his title which has vested in him by virtue of Section 65 of the Code, is destroyed and becomes ineffective and non-existent. If the language of Rule 94 and the scheme of the Code regarding auction sales contained particularly in Rules 85 and 92 of Order 21 and Section 65 of the Code be considered as a whole, then having due regard to the nature and object of the amended Rule 94, it reveals that this Court by amending Rule 94 intended the word "shall" to be directory, and not mandatory.
30. For these considerations, therefore, in my opinion, it is only reasonable and correct to conclude that the word "shall" used in the amended Rule 94 of Order 21 of the Code, in connection, with the filing of the sale certificate stamps within fifteen days from the date of the confirmation of the sale, must be held to be directory.
31. It is true that the word "may" may sometimes be equivalent to "shall" : Craies on Statute Law, 5th Edition, at page 264. Bud the question is whether the word "may" used in the last part of the amended Rule 94, providing that if the necessary stamp for the sale certificate is not filed within the prescribed period, ''the sale may, it the Court thinks fit, be get aside", is mandatory or directory.
32. In my opinion, the word "may" used in the amended Rule 94, imports a discretion, and, as such, it must be construed as directory and not mandatory, as there is nothing in the subject-matter to which it has been applied or in any part of the Code to show that it meant to be imperative. The Court has been given by the amendment a discretion to set aside the sale or to refuse to set it aside.
33. Here, if the word "may" is construed as mandatory as contended on behalf of the petitioners, it will lead to absurdity and to a manifest contradiction of the purpose of the Code and to nullify the effect of Section 65 and Rule 92 or Order 21 of the Code. The non-filing of the sale certificate stumpy by the auction-purchaser, therefore, cannot have any effect on the validity of the sale when it has become absolute under Rule 92(1) of Order 21 of the Code. The Patna High Court intended to use the word "may", in the last part of the amended Rule 94 of Order 21, in its usual and natural meaning. The word "may", therefore here, in this context, to avoid the conflict between Section 65 and Rule 92 of Order 21, on the one hand, and, the amended Rule 94 of Order 21, on the other, must be construed as directory and not mandatory.
34. It is not necessary, in the present case, to decide whether the said provision; giving power and discretion to the Court to set aside the sale, if the sale certificate stamp is not filed within the prescribed period as required by the amended Rule 94 of Order 21, is ultra vires of the rule-making powers of the High Court vested in it under Section 130 of the Code, or, is in conflict with Section 65, or Rule 92 of Order 21 of the Code, although, 'may observe, that it is plain that there is an obvious conflict between section 05 read with Rule 92 of Order 21 and the aforesaid amendment made by this Court in Rule 94 of Order 21 of the Code.
35. On the above interpretation of the amended Rule 94 which, in my opinion, is the true meaning and scope and effect and the correct construction of it, it is manifestly clear that the Court has got power to accept the sale certificate stamps filed beyond the prescribed period and to direct the preparation of the sale certificate, and, as the act of the Court in preparing the sale certificate is a ministerial act, and not a judicial one, no notice is necessary to be issued to the judgment-debtor, because, that is a question between the executing Court and the auction-purchaser and, therefore in the present case, the Court below having accepted the sale certificate stamps and directed the preparation of the sale certificate in each case, and, having exercised also its discretion in refusing to set aside the sale, I do not think this Court should interfere with the exercise of the discretion of the Court below. The Court below by refusing to exercise its discretion in setting aside the sale, as asked for by the judgment-debtors, has obviously done justice to both the parties, and, therefore, considered from that point of view also, this Court is always reluctant to interfere with a discretionary order of the Court below when justice has been done.
36. In view of my above decision on we real issues in the cases, I would, accordingly, answer the points, raised on behalf of the petitioners, as follows :
First that the provision in the amended Rule 94 for filing of the sale certificate stamp within fifteen days from the date of the confirmation ot the sale, is directory and, not mandatory, and, therefore, the Court below had jurisdiction to accept; the sale certificate stamp filed beyond the said prescribed period.
Second that the power vested in the Court to set aside the sale was discretionary, and, not mandatory, and, further, that the said provision did not entitle the judgment-debtor to make an application for setting aside the sale, when it had become absolute as envisaged by Rule 92 of Order 31 read with Section 65 of the Code;
Third that the preparation of a sale certificate being a ministerial act, the judgment-debtor was not entitled to any notice of the proceeding under Rule 94 Order 21 of the Code.
Fourth that the word "may" used in the last pari of Rule 94, giving the Court power to set aside the sale, imports a discretion and the said provision is directory, and not mandatory, and, therefore, the Court below was right in refusing to set aside the sales, even assuming that it could do so; and, Fifth that as the present applications are not directed against the order of the Court below directing delivery of possession or against the order of the Court below in the first three cases rejecting the application of the petitioner to recall its earlier order directing the issue of delivery of possession, and also because delivery of possession has been given in the first three cases, and, delivery of possession has not been given yet in the fourth case, it is not at all necessary to decide, if in view of Article 180 of the Limitation Act, the said orders are illegal.
37. For the above considerations, I hold that there is no merit in any of these applications, and, accordingly they are dismissed and the impugned order dated the 19th September, 1960, is affirmed and the rule issued in each case is discharged. I would, however, on the facts of the present case, direct that both the parties to bear their own costs of this Court.