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Baij Nath Vs. Banwari Lal - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in95Ind.Cas.965
AppellantBaij Nath
RespondentBanwari Lal
Cases ReferredChiddo v. Piari Lal
Excerpt:
civil procedure code (act v of 1008), section 65 - execution of decree--sale, confirmation of--auction-purchaser, title of--sale certificate, whether necessary. - .....in 1889. it is admitted that this sale was confirmed by munshi lal. but there is ho proof that any sale-certificate was ever granted to munshi lal. the possessory mortgagees have remained in possession all along. the plaintiff came into court on the allegation that munshi lal, the auction-purchaser, had transferred his rights-in-interest to diwan singh, the original judgment-debtor, who is the ancestor of the present judgment debtor. both the courts below have dismissed the suit. the lower appellate court has held that the learned munsif was right in disbelieving the story of the plaintiff that munshi lal transferred his property to diwan singh. the finding means that the alleged transfer by munshi lal in favour of diwan singh has not been established. the plaintiff, therefore, cannot.....
Judgment:

1. This is a plaintiff's appeal arising out of a suit for redemption. In 1881 Diwan Singh had made a possessory mortgage in favour of the respondent Banwari Lal and his father. Subsequently in the execution of a simple money-decree against Diwan Singh, his equity of redemption was put up for sale at auction and was purchased by Munshi Lal in 1889. It is admitted that this sale was confirmed by Munshi Lal. But there is ho proof that any sale-certificate was ever granted to Munshi Lal. The possessory mortgagees have remained in possession all along. The plaintiff came into Court on the allegation that Munshi Lal, the auction-purchaser, had transferred his rights-in-interest to Diwan Singh, the original judgment-debtor, who is the ancestor of the present judgment debtor. Both the Courts below have dismissed the suit. The lower Appellate Court has held that the learned Munsif was right in disbelieving the story of the plaintiff that Munshi Lal transferred his property to Diwan Singh. The finding means that the alleged transfer by Munshi Lal in favour of Diwan Singh has not been established. The plaintiff, therefore, cannot succeed on the ground of any such allegation.

2. As a last resource it is contended on behalf of the plaintiff that inasmuch as Munshi Lal did not take out a sale-certificate after the confirmation of the sale, no rights vested in him under Section 316 of the old C. P. C. and that the property remained vested in the judgment-debtor Diwan Singh. On this basis the plaintiff claims in second appeal to be entitled to redeem the property.

3. Under the old Act VIII of 1859, it was held by their Lordships of the Privy Council in Buhuns Kowur v. Buhooree Lal 14 M.I.A. 496 at p. 523 : 18 W.E. 157 : 10 B.L.R. 159 : 3 Sar. P.C.J. 69 : 20 E.R. 871., that the Act did nothing more than create a statutory evidence of the transfer, in place of the old mode of transfer by Bill of sale. This was the view followed by a Full Bench of this Court in the case of Jagan Nath v. Baldeo 5 A. 365 : A.W.N. (1883) 48 : 3 Ind. Dec. (N. S.) 305. where it was held that it was not incumbent on a purchaser at an execution sale under Act VIII of 1859, which was confirmed, when suing for possession of the property, to produce a sale-certificate, the confirmation of sale being sufficient evidence of title in his favour. Section 316 of Act XIV of 1882 created some difficulty because its language was different, inasmuch as it said that the title to the property sold shall vest in the purchaser from the date of such certificate and not before. But even under that Act it was held in numerous cases that the auction-purchaser did at the very least acquire an equitable title to the property, as soon as the sale was confirmed, tide Yeshwant Baburao v. Govind Shankar 10 B. 453 : 5 Ind. Dec. (N. S.) 690.

3. The case of Chiddo v. Piari Lal 19 A. 188 : A.W.N. (1807) 14 : 9 Ind. Dec. (N. S.) 224. is a direct authority in point. There the equity of redemption had been sold in execution of a simple money-decree and the sale had been confirmed but the purchaser had not obtained a sale certificate. A representative of the judgment-debtor brought a suit for redemption of the mortgage ignoring the auction-purchase. Aikman held that as the plaintiff's equity of redemption had been sold and the sale had been confirmed, the mere fact of the auction purchaser not having as yet obtained a sale-certificate would not entitle the plaintiff to treat the sale as a nullity and to maintain the present suit for redemption. It is clear, therefore, that even if the suit had been brought under the old Code, the plaintiff would not have been able to succeed.

4. The present law is now embodied in Section 65 of the new C. P. C. Under that section the issue of a sale certificate is not at all essential and the property vests in the auction-purchaser from the date of the sale. If this rule is to be treated as a rule of procedure and the present suit be governed by the new C. P. C., no difficulty would be felt in the way of the defence and the plaintiff would undoubtedly be out of Court. Even, however, if the case were governed by the old Act, the plaintiff has no locus standi to sue.

5. The appeal is accordingly dismissed with costs, including fees on the higher scale.


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