JUDGMENT
D.P. Sood, J.
1. In this regular second appeal the only substantial question of law which arise for adjudication is:–
“Whether on the facts and in the circumstances of the case the Courts below were right in law in holding that the suit is not maintainable?”
2. On 22nd April, 1976, the plaintiffs had
preferred a suit challenging the sale made by
the Court in execution of a decree in favour of
defendants Nos. 2 and 3 on 17th January,
1976. In an earlier civil suit No. 211 of 1972,
one Shri Dola Ram had obtained a consent
decree vide order dated 1-6-1973 against Pala,
the father of plaintiffs which was later on
executed and ultimately the possession of the
disputed property was handed over to defendants Nos. 2 and 3. It is pertinent to note that
the sale of the disputed property in those
execution proceedings was effected on 17-1-
1976 before coming into force of the Code of
Civil Procedure (Amendment) Act, 1976 (Act
No. 104 of 1976). The said amendment was
made effective from 1-2-1977.
3. In the aforesaid suit, the plaintiffs had alleged that firstly their father was a marginal farmer and as such his land could not be attached or sold and the sale is not binding on them and secondly that the disputed property was ancestral in nature and on this ground too, the suit land could not be sold. Defendants had questioned the maintainability of the suit contending that they had purchased the suit land in execution proceedings and were handed over the possession, also. Both the Courts below non-suited the plaintiffs on the ground that the suit was not maintainable.
4. At the very outset, it may be noted that Shri Pala, judgment-debtor, the father of the plaintiffs was the only person, who could raise objection with respect to the attachment and sale of the suit land. The record shows that he had assailed the decree resulting into execution ultimately in Civil Suit No. 259 of 1974 decided on 15-7-1975. However, the same was dismissed as withdrawn with liberty to bring a fresh suit on the same cause of action. It appears that he died and thereafter his sons had filed the instant suit. The ground taken by him was that the decree in question was fraudulent, ineffective and inoperative. The latter suit filed by the plaintiffs raises different grounds with respect to the attachment and sale of the suit land i.e. their father was a marginal farmer and the suit land was ancestral in nature. The first objection has been raised under the provisions of Himachal Pradesh Relief of Agricultural Indebtedness Act, 1976 (Act No. 17 of 1976).
5. It may be stated that the aforesaid Act No. 17 of 1976 came into force on 30-4-1976. As such the objection that Shri Pala, judgment-debtor being a marginal farmer was not available either to the original judgment-debtor or to the plaintiffs. As regards the nature of the property, it was a question which could have been considered by raising objections under Section 47 r.w. Order 21, Rule 90 of the Code of Civil Procedure and not by way of a separate civil suit. The executing Court had jurisdiction to decide the objection petition which resulted into the execution, discharge or satisfaction of the decree as envisaged thereby. Even otherwise the said objection is covered by the observations made by the apex Court in Dhirendra Nath v. Sudhir Chandra, AIR 1964 SC 1300. Subba Rao, J. in the case (supra) held as under:–
“If a provision of a statute is only directory, an act done in contravention of the provision is manifestly not a nullity. Section 35 of the Act is couched in a mandatory form and it casts in terms a duty on the Court to comply with its provisions before a sale is held. Prima facie the provision is mandatory; at any rate, we shall assume it to be so for the purpose of these appeals.”
6. And observed further at page 1305:
“Whether the Court acts without inherent jurisdiction, a party affected cannot by waiver confer jurisdiction on it, which it has not. Where such jurisdiction is not wanting, a directory provision can obviously be waived. But a mandatory provision can only be waived if it is not conceived in the public interests,’ but in the interests of the party that waives it. In the present case the executing Court had inherent jurisdiction to sell the property. We have assumed that Section 35 of the Act is mandatory provision. If so, the question is whether the said provision is conceived in the interests of the public or in the interests of the person affected by the non-observance of the provision ………………….. We are, therefore, satisfied, on a true construction of Section 35 of the Act, that it is intended only for the benefit of the judgment-debtor and, therefore, he can waive the right conferred on him under Section 35 of the Act. If that be the legal position, O. XXI, R. 90 of the Code of Civil Procedure is immediately attracted.”
7. In that view of the matter, the attachment or the consequent sale cannot be held to be a nullity and objection with respect thereto is also covered by Rule 19 of Order XXI of the Code of Civil Procedure. Thus, from whatsoever angle the submissions of the learned counsel for the plaintiffs may be viewed, they appear to be meritless. The appeal is accordingly dismissed.