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Khushal Panachand Vs. Bhimabai - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtMumbai
Decided On
Judge
Reported in(1888)ILR12Bom589
AppellantKhushal Panachand
RespondentBhimabai
Excerpt:
.....of sale, effect of--title of auction-purchaser without certificate of sale. - - the subordinate judge found the plaintiff was an agriculturist, and that the defendant, not having a certificate of sale, had failed to prove his title, and directed a commission to take the mortgage accounts. , was satisfied with proof of the order confirming a sale where the certificate of sale was unregistered, and, therefore, inadmissible in evidence-raj kishen mookerjee v. and although the certificate of the sale might be necessary for the purchaser, if he was seeking to establish his title against other persons, yet without any certificate the defendant, the mortgagor in that suit, (in which the property was purchased), and the plaintiff in the present suit, (who had acquired the title of..........says: 'there was an order confirming the sale, which order would relate back to the time of the sale; the sale would be confirmed as from the date when it was made. and although the certificate of the sale might be necessary for the purchaser, if he was seeking to establish his title against other persons, yet without any certificate the defendant, the mortgagor in that suit, (in which the property was purchased), and the plaintiff in the present suit, (who had acquired the title of the mortgagor), would be bound by the proceedings, and there would be a good title against them.' in other words, where the question is between a party to the suit under execution and the purchaser at the auction-sale, the former cannot, after confirmation of the sale, dispute the latter's title. the order.....
Judgment:

Charles Sargent, C.J.

1. The plaintiff in this case sued to redeem certain property mortgaged by her deceased husband, Annaji, to one Khushal. The defendant pleaded that the plaintiff was not an agriculturist, and that she had no right to redeem the mortgage, as her husband's interest had been bought by him at an auction-sale, in execution of a decree obtained by one Ladhaji against her husband. The Subordinate Judge found the plaintiff was an agriculturist, and that the defendant, not having a certificate of sale, had failed to prove his title, and directed a commission to take the mortgage accounts.

2. On the 24th June, 1884, the defendant applied for a review of the judgment on the second issue, on the ground that he had since discovered his certificate. This was granted by the Subordinate Judge on the 2nd July, 1884; but, on review, judgment on the issue was confirmed, the Court holding that as the certificate produced was unregistered, it could not be given in evidence.

3. On the 7th October the defendant made another application for review of the judgment passed on the second issue, on the ground that he had since, on the 19th September, 1884, obtained a fresh certificate of sale and had it registered. The Subordinate Judge admitted the application; and, on review, reversed the former order, and rejected the plaintiff's claim.

4. On appeal, the District Judge reversed the decree and remanded the case for a decision on the merits. The grounds of his decision are that the review ought not to have been admitted by the Subordinate Judge, and that he ought not to have reversed his former order on the ground urged for the defendant, that since that order was passed, the title to the equity of redemption had become vested in him by purchase.

5. It was contended by Mr. Inverarity for the defendant that the proceedings before the Subordinate Judge, regarded as proceedings in review, were irregular in form and should be disregarded, and that the application of 7th October should be treated as one simply for the admission of fresh evidence before the final decree was passed. The objection to the form of those proceedings is, in our opinion, of far too technical a character to be allowed. It is true that the applications of 24th June, 1884, and 7th October, 1884, were, in terms, for a review of the judgment passed on the second issue; but in substance they sought a review of the order which admittedly was made by the Subordinate Judge (although it is said no formal order was drawn up) for a commission to take the mortgage accounts, which indeed was the necessary consequence of the Subordinate Judge's finding on the second issue. Moreover, as long as the order remained in force the fresh evidence would be irrelevant.

6. As to the remand order now under appeal, we agree with the ruling of the Calcutta Court in Noimollah Pramanick v. Grish Narain Moonshee I.L.R., 8 Cal 674 that all this Court can do is to take the facts as found by the District Judge and to say whether, upon those facts, he was wrong in point of law in remanding the case.

7. In the present case, no error of law has been suggested in the decision of the District Judge rejecting the application for review. If, therefore, the production of a registered certificate was necessary, in point of law, to establish the defendant's plea to the plaintiff's right to redeem, the lower Appellate Court was right in remanding the case.

8. In Padu Malhari v. Rakhmai Bom. H.C. Rep., 435, where the plaintiff sought to recover possession, it was held, under the Code of Civil Procedure of 1859, that the transfer of property to the auction-purchaser was not complete until the certificate was granted; secondly, that, unless it was registered, it could not be given in evidence; and thirdly, that no other evidence was admissible to prove the plaintiff's title. That decision has since been followed in this Court in all cases in which the plaintiff is suing in ejectment to obtain possession from a third person who was not a party to the suit. However, in Krishnaji Rauji v. Ganesh Bapuji I.L.R., 6 Bom., 139 where the plaintiff, who had purchased from a purchaser at an auction-sale, sought to redeem, Westropp, C.J., said: 'This suit for redemption is of an equitable nature. Equitably the plaintiff and, before the conveyance to him, Yashwant Lingshet, were entitled to redeem. They had successively purchased and paid for the equity of redemption, although the certificate of sale was not issued until after this suit had begun. It is quite true that a purchaser at a judicial sale is not, strictly speaking, entitled to possession until a certificate of sale has been granted to him; but, as a matter of fact, he not unfrequently is put into possession after the confirmation of the sale and before the issuing of the certificate; and, as will be seen by the observations in Tukaram v. Satvaji I.L.R., 5 Bom., 207 it is exceedingly doubtful that he could be ousted merely for want of the certificate. Sir R. Couch, C.J., was satisfied with proof of the order confirming a sale where the certificate of sale was unregistered, and, therefore, inadmissible in evidence-Raj Kishen Mookerjee v. Radha Madhub Holdar 21 Cal. W.R. Civ. Rul., 349 '.

9. These remarks show that the late Chief Justice considered that, under the Civil Procedure Code of 1859, the purchaser at a judicial sale, after confirmation of the sale, acquired an equitable title, which, although not completed by the grant of a certificate, was one which the Court, at any rate, would not allow to be disturbed. In Raj Kishen Mookerjee v. Radha Madhub Holdar 21 Cal. W. R Civ. Rul. 351 Sir It. Couch says: 'There was an order confirming the sale, which order would relate back to the time of the sale; the sale would be confirmed as from the date when it was made. And although the certificate of the sale might be necessary for the purchaser, if he was seeking to establish his title against other persons, yet without any certificate the defendant, the mortgagor in that suit, (in which the property was purchased), and the plaintiff in the present suit, (who had acquired the title of the mortgagor), would be bound by the proceedings, and there would be a good title against them.' In other words, where the question is between a party to the suit under execution and the purchaser at the auction-sale, the former cannot, after confirmation of the sale, dispute the latter's title. The order confirming the sale would complete the title as against him. The plaintiff here represents the interest of her husband, who was the defendant in the suit in execution of which the present defendant acquired his title. The defendant is, moreover, lawfully in possession (having been so originally as mortgagee), and is resisting an equitable right. The circumstances are thus on all fours with those of Shivram Narayan v. Ravji Sakharam I.L.R., 7 Bom., 254 whore this Court, following the decision of Couch, C.J., held that the defendant had a good title against the plaintiff without the aid of a certificate.

10. We must, therefore, discharge the order of the District Judge, and send back the case for a fresh decision, having regard to the above remarks. Costs of this appeal to follow the result.


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