Voidable sale under mortgage law: breach of protective transfer rules does not make the sale a nullity.

Section 99 of the Transfer of Property Act regulates sales by a mortgagee after attachment in execution of a money decree and is designed to protect the mortgagor's equity of redemption. A sale made in breach of that provision is treated as an irregular exercise of jurisdiction, not as a proceeding without jurisdiction, so it is not a nullity but an illegal and voidable sale. The protection may be waived by the mortgagor. Before confirmation, the sale may be prevented or set aside on proof of contravention alone; after confirmation, it may be set aside only if the applicant proves lack of notice because of fraud or other sufficient cause.

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Issues: (i) Whether a sale held in contravention of section 99 of the Transfer of Property Act is a nullity or only an illegal and voidable sale, and what remedy is available to avoid it.

Analysis: Section 99 was held to regulate the mode of sale by a mortgagee after attachment in execution of a money decree and to protect the owner of the equity of redemption. A sale made in breach of that provision was treated as an irregular exercise of jurisdiction, not as a proceeding without jurisdiction. The rule was framed for the benefit of the mortgagor, and therefore the benefit could be waived. If objection is taken before confirmation, the sale may be prevented or set aside on proof only that section 99 was contravened. If the sale has been confirmed, it may still be set aside only if the applicant shows lack of notice of the sale or confirmation because of fraud or other sufficient cause.

Conclusion: A sale in contravention of section 99 is not a nullity but an illegal and voidable sale, and it may be set aside by application under section 244 of the Code of Civil Procedure on the conditions stated.

Final Conclusion: The order setting aside the sale merely because section 99 was breached could not stand, and the matter had to go back for enquiry into notice and the other objections raised.

Ratio Decidendi: A statutory restriction enacted for the protection of a private party does not render a sale void for want of jurisdiction when the court otherwise has competence over the subject-matter; the sale is only voidable and may be avoided according to the prescribed procedure, subject to waiver and confirmation.

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