Court sale irregularity under money-lenders law is not a nullity and needs substantial injury to set aside.

A court sale conducted contrary to section 35 of the Bengal Money-Lenders Act, 1940 was treated as a material irregularity in publishing or conducting the sale, not as a jurisdictional nullity. Section 35 was read as supplementing Order XXI, rule 66 of the Code of Civil Procedure by requiring the sale proclamation in a loan decree to confine the property sold to what was sufficient to satisfy the decree. Because the provision protected the private benefit of the judgment-debtor, its benefit could be waived. In the absence of a timely objection at the proclamation stage and proof of substantial injury, the sale could not be set aside under Order XXI, rule 90.

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Issues: Whether a court sale held in contravention of section 35 of the Bengal Money-Lenders Act, 1940 was void as a nullity or only an irregularity, and whether the sale could be set aside under Order XXI, rule 90 of the Code of Civil Procedure, 1908.

Analysis: Section 35 required the executing court, when settling the sale proclamation in a loan decree, to specify only so much property as was sufficient to satisfy the decree and to avoid sale at a price below the specified amount. The provision was treated as supplementing Order XXI, rule 66 of the Code of Civil Procedure, 1908 and as regulating the contents of the proclamation of sale. Non-compliance with that requirement was held to amount to a defect or material irregularity in publishing or conducting the sale, not to a jurisdictional nullity. A mandatory provision is not necessarily incapable of waiver; where the provision is intended for the benefit and protection of the judgment-debtor and does not protect a public right, the benefit may be waived. Section 35 was held to be enacted for the private benefit of the judgment-debtor, and therefore his failure to object at the proclamation stage, or his inability to show substantial injury, brought the case within Order XXI, rule 90.

Conclusion: The sale was not a nullity and could not be set aside in the absence of substantial injury and a timely objection where required; the challenge to the sale failed.

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