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Balvant Babaji Dhondge Vs. Hirachand Gulabchand Gujar - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtMumbai
Decided On
Judge
Reported in(1904)ILR27Bom217
AppellantBalvant Babaji Dhondge
RespondentHirachand Gulabchand Gujar
Excerpt:
execution sale - certificate of sale not conclusive as to the property sold at execution sale--civil procedure code (act xiv of 1882), sections 316, 317. - maharashtra scheduled castes, scheduled tribes, de-notified tribes (vimukta jatis), nomadic tribes, other backward classes and special backward category (regulation of issuance and verification of) caste certificate act (23 of 2001), sections 6 & 10: [s.b. mhase, a.p. deshpande & p.b. varale, jj] caste certificate petitioner seeking appointment against the post reserved for member of schedule tribe his caste certificate was invalidated subsequently held, his appointment would not be protected. the observations/directions issued by supreme court in para 36 of judgment in the case of state v millind reported in 2001 91) mah. lj sc 1..........facts the lower appellate court held that the plaintiff was bound by the misdescription in the sale certificate, and reversed the decree of the court of first instance. in effect the lower appellate court has held the certificate of sale the sole and conclusive evidence of the plaintiff's title as auction purchaser, notwithstanding that it is in conflict with the decretal order, the order on the darkhast for sale and the proclamation, of sale. the plaintiff, has appealed against this decision.3. there is nothing in section 316 (and nothing has been pointed out in any other part of the code) which makes a certificate of sale conclusive as to the property sold. it is a significant fact that the words in section 259 of the code of 1859 (act viii of 1859), which gave a certificate of.....
Judgment:

Batty, J.

1. The lower Appellate Court has stated the facts of this case as follows:

The plaintiff in this case had obtained a decree against all the five brothers; his darkhast was against five brothers. The proclamation of sale announced that the complete interest in the house, subject to the mortgage, was to be sold, but that, when this bailiff made the sale yad he recorded that only the right, title and interest of Yashvant (the eldest brother) was being sold. The confirmation order repeats the terms of the sale yad; so does the sale yad and the tabs (possession) yad. The plaintiff was put in possession of the whole house. There was a miscellaneous application by three of the brothers objecting to the result of the sale, but this was objected. The defendant then sold (sic) the right, title and interest of his debtors (the mother and one brother) and took possession of the house.

2. On these facts the lower Appellate Court held that the plaintiff was bound by the misdescription in the sale certificate, and reversed the decree of the Court of first instance. In effect the lower Appellate Court has held the certificate of sale the sole and conclusive evidence of the plaintiff's title as auction purchaser, notwithstanding that it is in conflict with the decretal order, the order on the darkhast for sale and the proclamation, of sale. The plaintiff, has appealed against this decision.

3. There is nothing in Section 316 (and nothing has been pointed out in any other part of the Code) which makes a certificate of sale conclusive as to the property sold. It is a significant fact that the words in Section 259 of the Code of 1859 (Act VIII of 1859), which gave a certificate of sale such effect, have been omitted in the present Code. That section required the C8urt to grant a certificate to the person who may have been declared to be the purchaser, to the effect that he has purchased the right, title and interest of the defendant in the property sold, and declared that such certificate shall be taken and deemed to be a valid transfer of such right, title and interest. The Legislature, in advisedly abstaining from reproducing these words, has apparently deprived the certificate of sale of the effect formerly given to it, and has left the question of what property has passed to be determined by the actual sale itself or, in the words of the Privy Council, by what the purchaser has 'bargained and paid for.' The certificate is, so far as regards the parties to the suit and those claiming through or under them, determinative as to the date from which the property actually sold vests in the purchaser, and Section 317 renders it also practically determinative, in the absence of fraud or the like, as to the identity of the purchaser. Neither section gives it operation to determine what has been sold. Section 316 requires that a certificate shall be granted stating she property sold. That is to say, it is the duty of the Court, not to determine what property is to pass by the sale, but merely to record the already accomplished fact of a transaction that has taken place and to state what has been sold. The Court has no power to do more or to alter the fact of the sale which has actually taken place. Its action in granting the certificate is ministerial and not judicial: Vithal Janardan v. Vithojirav Putlajirav (1882) 6 Bom. 586.

4. The sale is a transaction, and consists, as all contracts do, of an offer and acceptance. The offer is made by She Court exorcising in the place of the judgment-debtor and on behalf of his creditor, the disposing power which the judgment-debtor had over the property. This offer is advertised at published by means of the proclamation of sale, which Section 287 requires to specify the property intended to be sold. An advertisement of this nature is an offer to such person as shall fulfil the required conditions as to the highest bid, deposit of 25 per cent, of purchase-money and punctual payment at She prescribed date and other prescribed conditions: and so far as concerns the identification of the property to be offered for sale, it is the only declaration which is authorized at required. The provisions of Sections 287, 289 and 290 lay considerable stress on the importance of due publicity being given to this notice of the intention as to what is to be sold, and the Code recognizes no other intimation on the subject.

5. It is urged that the Lilav yad, said in this case to have been prepared by the bailiff, was a document required by rules framed under Section 287 of the Code. But such rules are at most directory for the guidance of the Courts so exercise of their duties, and could not either supersede the provisions of the Code or imposes duties of enquiry upon, or otherwise affect, the rights or responsibilities of the outside public.

6. The case of Gowree Kumul v. Surunt Chunder (1874) 22 Cal. W.R. 408 relied on by the lower Appellate Court, was one renting to a sale held in 1859 and apparently subject to the Code of that year. Its effect, moreover, is to declare that a purchaser receiving a certificate going beyond the order for sale, cannot avail himself of any thing in the certificate beyond the order. The case of Prem Chand Pal v. Purnima Dasi (1888) 15 Cal. 546 also cited by the lower Appellate Court, appears to have turned upon the construction of Section 54 of a Bengal Act (XI of 1859), except so far as it held Section 316 of the Code conclusive as to the date from which the title vested. For the respondents the ease of Mookhya Huruckraj v. Ram Lall (1870) 14 C. W.R. 435 which appears to have been decided under the Code of 1859, and which dealt only with the misconstruction of the certificate based on inferences from irrelevant documents, was relied on. The case of Lalla Bissessur v. Doolar Chand (1874) 22 Cal. W.R. 181 also relied on by the respondents, appears to be another decision under the Code of 1859, and therefore ruled that the Court, according to its sale certificate, had expressly sold the rights and interest of the judgment-debtor alone.

7. Again, it is urged for the respondent that even supposing the actual sale was, by the order of the Court directing it and according be the proclamation, a sale extending to the interest of all the five brothers, yet the Court confirmed only the sale of Yashvant's Interest, A reference, however, to Sections 312 and 314 shows that it is the actual sale which the Court confirms, and not any transaction which by inadvertence, fraud or collusion may have won described in any reference to the sale made in a document subsequent thereto. For Section 312 requires that if no application be made under Section 311, or if any such be made and disallowed, the Court shall pass mi order confirming the sale as between the parties to the suit and the purchaser. A subsequent purchaser of the interest of one of the parties is therefore bound by the sale confirmed, and, if the Bale of that interest has been confirmed, cannot avail himself of any misstatement in a subsequent document which purports to vary the transaction confirmed. The real question in such case, under the present Code of Civil Procedure, seems therefore to be what was the sale, i.e., what was bargained and paid for, and that must depend not on erroneous statements of what was offered for sale, but on what was actually offered for sale and bid for. What was offered for sale was determined by the order of the Court and the proclamation, and if the order has been carried out and the property sold accordingly, that sale and nothing else must be taken to have been confirmed, whatever words of description referring to the transaction may have been inserted in the order confirming it or in the certificate stating it. There is no allegation that there is evidence, nor is there any finding, in this case that the property offered and bid for was anything but the property ordered to be sold and proclaimed for sale; and I therefore think that the property sold to the plaintiff was the interest mentioned in the Court's order and proclamation, and that the sale of that property became absolute by the order which confirmed the sale. The result will be that the decree of the lower Appellate Court must be reversed and that of the Court of first instance must be restored with costs on the defendant throughout.

Starling, J.

8. In this case, under a mortgage dated 28th July, 1901, one Yashvant and his mother Bhagu mortgaged the house in suit, which belonged to the family of which they were members, consisting of Yashvant, his mother and four brothers. Plaintiff's father sued the whole family and got a decree against them for the sale of the whole house. Plaintiff applied for execution of the decree against all the defendants in that suit, which was granted, and a proclamation was issued for the sale of the whole property against all the defendants. The plaintiff purchased the property. Although the order for sale and the proclamation were in respect of the whole house, yet the lilav yad prepared by the bailiff mentioned the name of Yashvant only, and in the order for the confirmation of the sale and the certificate of sale, although the whole property was described, yet at the end thereof appeared the words 'right, title and interest of Yashvant therein.' On the strength of this, three of the brothers applied that the plaintiff might not be put in possession of their shares, but the application was refused and the plaintiff was put in possession of the house, which he looked up. Subsequently the defendant brought a suit against the mother and one of the sons other than the three last mentioned, and obtained a money decree against them, on which he attached and sold their rights, title and interest in the said house, which he purchased himself. In execution he was put in sole possession, the plaintiff's lock being taken off. On this the plaintiff brought this suit.

9. The sole question in this appeal is the interest which the plaintiff took in the house by his purchase thereof tinder the mortgage decree. There is no doubt that the decree gave him the right to have the whole house sold; she proclamation announced to the world that the Court was about to sell the whole house, and what the Court offered for sale the plaintiff purchased. That the Court thought it had sold the whole house is evident from the fact that it disallowed the application of the three brothers to prevent possession being given to the plaintiff.

10. The question to be considered is whether the insertion of the words 'right, title and interest of Yashvant' in the confirmation of sale and the sale certificate necessarily limits the interest actually purchased to that possessed by Yashvant in his own right. It seems to me that there was gross carelessness, at the least, in the bailiff who made out the lilav yad, and in the clerk or clerks who prepared for the signature of the Judge the order confirming the sale and the certificate of sale, in not following the terms of the proclamation of sale; and I might suggest that it would be well if the Judge himself, when signing such important documents as these, were to take the trouble to sea that the property described in the documents he signs corresponds with that proclaimed for sale. On the Original Side I have never signed a confirmation of sale without seeing that the description of the property therein corresponded with that actually put up for sale.

11. Can, then, the words 'right, title and interest of Yashvant' be held to include the whole of the property? Following the principles of the rulings in the Privy Council, I am of opinion that they can. Those words convey nothing in themselves: surrounding circumstances must be looked at to see what their extent is. In the present case the mortgage was by Yashvant and Bhagu only, the former being the eldest member of the family, yet the Court held that they had the right and were entitled to bind the whole family. Of course it was Yashvant's act, as the eldest male member of the family, which bound them. Further, looking to the fact that the Court evidently intended to sell the interest of the whole family and the plaintiff to purchase the same, I am of opinion that what was described under the terms 'right, title and interest of Yashvant'' was what the Court had already determined had been validly mortgaged by his act, and consequently what the plaintiff purchased and that to which he was entitled under the certificate of sale is the whole house and nothing else. Under these circumstances the defendant purchased nothing by the sale under his decree, as the defendant in this suit had nothing left in them to sell.

12. The appeal must therefore be allowed, the decree of the lower Appellate Court reversed and that of the Subordinate Judge restored with costs.


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