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Brahmananda Choudhury Vs. Prahlad Panigrahi and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 271 of 1973
Judge
Reported inAIR1975Ori115
ActsCode of Civil Procedure (CPC) , 1908 - Sections 151 - Order 21, Rule 94
AppellantBrahmananda Choudhury
RespondentPrahlad Panigrahi and anr.
Advocates:M. Patra, ;B.K. Dagara and ;B. Mohanty, Advs.
DispositionRevision allowed
Cases Referred(Sobla v. Jathmal).
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot..........munsif, kendrapara dismissing an application under section 151, civil p c for amendment of the sale certificate issued under order 21, rule 94, civil p. c.2. the petitioner obtained a money decree in money suit no. 110 of 1968 and filed execution case no. 19 of 1970 for realisation of the decretal dues by attachment and sale of the immovable properties of the iudsment-debtor. out of the five lots of immovable properties attached and advertised for sale, only lots nos. 4 and 5 were put to sale and the petitioner purchased the same with the permission of the court. these two lots of properties are situated at mouza naldhalia as mentioned in the execution petition, the attachment process, the sale proclamation and the news paper. but in the sale certificate issued by the court, the name.....
Judgment:
ORDER

P.K. Mohanti, J.

1. This Civil Revision if directed against an order of the learned Munsif, Kendrapara dismissing an application under Section 151, Civil P C for amendment of the sale certificate issued Under Order 21, Rule 94, Civil P. C.

2. The petitioner obtained a money decree in Money Suit No. 110 of 1968 and filed Execution Case No. 19 of 1970 for realisation of the decretal dues by attachment and sale of the immovable properties of the iudsment-debtor. Out of the five lots of immovable properties attached and advertised for sale, only lots Nos. 4 and 5 were put to sale and the petitioner purchased the same with the permission of the Court. These two lots of properties are situated at mouza Naldhalia as mentioned in the execution petition, the attachment process, the sale proclamation and the news paper. But in the sale certificate issued by the Court, the name of the mouza was wrongly mentioned as Baipada. On 20-2-1973 the petitioner filed an application under Section 151, Civil P. C. for correction of the mistake in the sale certificate, but the learned Munsif dismissed the same. That is why this Civil Revision has been preferred.

3. On a reference to the records, it appears that lots Nos. 2 to 5 of the properties advertised for sale are situated at village Naldhalia. Only lot No. 1 of the properties which was not put up for sale is situated at village Baipada. On a comparison of the particulars of the property mentioned in the sale certificate, the execution petition, the attachment process and the sale proclamation, it appears that they tally in all other respects except that the name of the village has been mentioned in the sale certificate as 'Bai-pada' instead of 'Naldhalia'.

4. Order 21, Rule 94, Civil P. C. Provides that where a sale of immovable property has become absolute the Court shall grant a certificate specifying the property sold. It is, therefore, clear that the sale certificate must be based on the sale proclamation. The real test in a case of this type is that which was pointed out by Lord Watson in (1887) ILR 10 Mad 241 (PC), (Pettachi Chettiar v. Sangili Vira Pandia Chinnatambiar) where his Lordship said:

'The questions were--what did the Court intend to sell; and what did the Purchaser understand that he bought ?'

The sale is an offer and acceptance; the offer is made by the Court and is advertised by the proclamation of sale. It is manifest that what was offered for sale and what was actually sold was theproperty of the judgment-debtor in village Naldhalia. There is no question of the Decree Holder Auction Purchaser attempting to obtain a property which was not put up for sale. It must, therefore, be held that the name of the village was wrongly mentioned in the sale certificate by mistake of the Court. The mistake is not one of identity of the property, but a mistake of description.

5. Now the question arises whether the mistake could be corrected in exercise of the inherent powers of the Court under Section 151, Civil P. C. The drawing up of the sale certificate is only a ministerial act and not a judicial one. The mistake appears to have occurred by an accidental error. In my opinion, this is a fit case in which the mistake should be corrected in exercise of the powers under Section 151, Civil P. C. as the correction is necessary for the ends of justice. This view is supported by a decision in AIR 1961 Rai 191, (Sobla v. Jathmal).

6. In the premises aforesaid, the Civil Revision is allowed and the order of the learned Munsif is set aside. The learned Munsif is directed to amend the sale certificate as prayed for. As there is no appearance for the opposite parties, I pass no order as to costs.


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