JUDGMENT
Alfred Henry Lionel Leach, C.J.
1. This appeal arises out of a suit filed by the respondent in the Court of the District Munsif of Tenkasi for a decree setting aside a sale held under the Madras Estates Land Act, 1908, and for a declaration of his title. The land in suit formed part of a mitta of which the second appellant is the mittadar. The ryot was one Namasivaya Moopanar who became insolvent in 1926. His insolvency, however, did not result in the disturbance of his possession. The Official Receiver took no steps to take over the land, nor even to notify the landlord of the ryot’s insolvency. Before the insolvency the ryot had mortgaged the holding to the respondent, who brought a suit to enforce his mortgage and impleaded the Official Receiver as a defendant. A mortgage decree was obtained and on the 18th October, 1929, the property was sold in execution, the respondent being the auction-purchaser. He took possession of the property from the ryot on the 19th December, 1929. In 1932 the second appellant instituted proceedings for the recovery of the rent then due. The property was still registered in the name of Namasivaya Moopanar, who was made the respondent in the proceedings. The property was brought to sale on the 15th October, 1932, and was purchased by the first appellant.
2. It will be convenient to interrupt the narrative here in order to refer to the relevant provisions of the Madras Estates Land Act, 1908. Section 112 provides that when the landholder to whom an arrear is due intends to avail himself of the powers given by Section 111 to sell the property, he shall serve on the defaulter through the Collector a written notice, stating the amount due for arrears, interest and costs, if any, the period for which and the holding in respect of which it is due, and informing him that if he does not pay the amount or file a suit before the Collector contesting the right of sale within 30 days from the date of service of the notice, the holding or any part thereof specified in the notice will be sold. Section 113 requires that intimation of the date of service shall forthwith be given to the landholder by post. Section 114 says that if the amount of the arrear is not paid and if no suit contesting the right of sale is instituted before the Collector within 30 days from the date of service of the notice, or if such suit has been decided against the defaulter, the landholder may apply to the Collector for sale. Section 115 provides that if no suit has been instituted the application for sale shall be made within 45 days of the posting by the Collector of intimation of service under Section 113. No suit was filed by the defaulter and it is common ground that the provisions of Sections 112, 113, 114 and 115 so far as they were applicable were followed. Section 116 says that immediately on receipt of the application for sale the Collector shall appoint an officer to conduct the sale. Section 117 requires the selling officer by order (i) to fix a date for the sale, (ii) to cause the sale to be proclaimed by beat of drum in the village in which the holding is situated, and (iii) to post a copy of his order in some conspicuous place in the village. This section clearly contemplates the selling officer settling the terms of the proclamation.
3. In this case the Collector fixed the date for the sale, settled the terms of the sale proclamation and himself caused it to be proclaimed. He signed the sale proclamation as the selling officer, which he had no power to do as he was not the selling officer. The sale proclamation was settled on the 8th September, 1932, and was proclaimed by a process-server acting under his orders on the 14th September, 1932. By an order dated the 11th September, 1932, the Collector appointed a selling officer, but all that the selling officer did was to preside at the auction. The respondent’s case is that by reason of the non-compliance with the provisions of Section 117 the sale was unlawful. The District Munsif accepted this contention and decreed the suit. The decision was upheld on appeal by the Subordinate Judge. While admitting that there were the irregularities complained of by the respondent the appellants contend that the provisions of Section 117 of the Act are merely directory and that in as much as the disregard of them has resulted in no loss being suffered, the Court is not entitled to set aside the sale.
4. It does not necessarily follow because imperative language is used in a section that a disregard of its provisions will render action taken void. In the Liverpool Borough Bank v. Turner (1861) 30 L.J. 379, Lord Campbell, L.C. said:
No universal rule can be laid down for the construction of statutes, as to whether mandatory enactments shall be considered directory only or obligatory, with an implied nullification for disobedience. It is the duly of Courts of Justice, to try to get at the real intention of the Legislature, by carefully attending to the whole scope of the statute to be construed.
5. The authorities were examined by Lord Penzance in Howard v. Bodington (1876) L.R. 2 Pro. 203 and he arrived at the same conclusion as Lord Campbell. Lord Penzance summed up the position in these words:
I believe, as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject-matter; consider the importance of the provision that has been disregarded and the relation of that provision to the general object intended to be secured by the Act; and upon a review of the case in that aspect decide whether the matter is what is called imperative or only directory.
6. The sections in the Madras Estates Land Act, 1908, to which I have referred state what should be done before a ryot’s holding is sold for arrears of rent. In this case there was almost a complete disregard of the statute. The selling officer whose duty it was to fix the date of the sale, settle the proclamation and cause the sale to be proclaimed did none of these things. He did not pass a single order. The orders which the selling officer should have passed were passed by the Collector, I who had no authority. With such great disregard of what the legislature says shall be done by the selling officer we are unable to regard the disobedience as amounting to mere irregularity. We consider that in view of the degree of disobedience the sale cannot be regarded as a sale lawfully held under the Act. In Kadirvelu Ambalam v. Alagappan Ambalam (1934) 40 L.W. 535, Krishnan Pandalai, J., also held that material irregularity deprived a sale of all validity.
7. Our attention has been drawn to the proviso to Order 21, Rule 90, Civil Procedure Code, which says that a sale shall not be set aside as the result of irregularity or fraud unless the applicant has sustained substantial injury as the result. There is no such provision under the Act which governs this case. Moreover, substantial injury would be done to the respondent if the sale were allowed to stand. He would lose all benefit from his mortgage decree.
8. The appeal will be dismissed with costs.
9. Entirely agree. The decision of the question whether the terms of a statute are to be regarded as imperative or directory only turns upon a correct appreciation of the scope of the Act itself and is not to be controlled by the consideration whether substantial injury has or has not resulted. This is the true principle to be gathered from the judgments of Lord Campbell and Lord Penzance in the cases referred to by my Lord. The absence of any reference to die question of substantial injury is in my view significant and the inference is plain that neither of the Lord Chancellors (?) considered it to be an element which could affect the decision one way or the other.
