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Sukhdev Raj Nanda and anr. Vs. P.D. Ahuja - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberRegular Appeal No. 2 of 1973 and Regular First Appeal No. 21D of 1963
Judge
Reported inILR1974Delhi681
ActsCode of Civil Procedure (CPC), 1908 - Sections 96; Registration Act, 1908 - Sections 17(2)
AppellantSukhdev Raj Nanda and anr.
RespondentP.D. Ahuja
Advocates: B.S.C. Singh and; S. Pappu, Advs
Cases ReferredBombay Salt and Chemical Industries v. L. J. Johnson and
Excerpt:
.....17(2)(xii)--certificate of sale--when exampted from registration--officers competent to grant sale certificates.; where the property was sold in an auction and sale certificate was issued under rule 11-e of evacuee interest (separation) rules by the `competent officer': held, that the sale certificate did not require registration.; that section 17(2) clause xii of the registration act enumerates two kinds of officers who may grant certificates of sale to the purchaser of any property sold at public auction. the distinction is that such an officer may be either a civil or a revenue officer. taking into consideration that the state government has to appoint competent officer with the approval of the central government by a notification in the official gazette and the persons to be..........in issue as to whether the plaintiffs were the owners of the premises in dispute or not and the sale certificate ex. p. 1 having not been registered it should have been held by us while disposing of the appeal that the appellants were not the owners of the property and thereforee not entitle to the relief which they had sought. in this application it has been repeated that the right of ownership remained unestablished for want of registration and reference has been made in that behalf to the statement of public witness 10 sukhdev raj at page 42 of the paper book. the submission is that there is an error apparent on the face of the record in as much as ex. p. 1. i the sale certificate being unregistered the plaintiffs of the suit could not have claimed the relief for which they had.....
Judgment:

Safeer, J.

(1) This order will dispose of the application filed by Shri P. D. Ahuja, respondent in R.F.A. 21-D of 1963 under section 114 read with order 47 rule 1 of the Civil Procedure Code, urging that the judgment and decree dated the 30th of July, 1973 made by this Court, be reviewed. It is conceded in paragraph 1 of the application that the appeal was argued at length before us and then disposed of. The ground urged, however, is that the sale certificate issued in favor of the appellants i.e.. Ex. P.1 did not at all confer any title because it was not registered as required by section 17 of the Indian Registration Act.

(2) The counsel for the applicant emphasises that it was a matter in issue as to whether the plaintiffs were the owners of the premises in dispute or not and the sale certificate Ex. P. 1 having not been registered it should have been held by us while disposing of the appeal that the appellants were not the owners of the property and thereforee not entitle to the relief which they had sought. In this application it has been repeated that the right of ownership remained unestablished for want of registration and reference has been made in that behalf to the statement of Public Witness 10 Sukhdev Raj at page 42 of the paper book. The submission is that there is an error apparent on the face of the record in as much as Ex. P. 1. I the sale certificate being unregistered the plaintiffs of the suit could not have claimed the relief for which they had brought the suit.

(3) While hearing the application an adjournment was granted on the 24th of September, 1973 to enable the applicant to file an affidavit in order to clarify his stand. An affidavit sworn on the 25th of September, 1973 was filed in paragraph 4 whereof it was stated that according to the information of the dependent grounds Nos. 1, 2,3,4,5 and 6 in the review application were not urged at the time of the hearing of the appeal. Ground No. 1 is that the plaintiffs respondents could not have claimed title in the property as owners on the basis of the unregistered sale certificate Ex. P. 1. Ground No. 2 is that it is apparent on the face of the record that the sale certificate being unregistered was void and ineffective. Grounds 3 and 4 are to the effect that the judgment sought to be reviewed is opposed to the provisions contained in section 11 of the Evacuee Interest (Separation) Act, 1951 hereafter called ' the Act' and the provisions contained in rule 11-E framed under that Act. Ground No. 5 places a general reliance on the Evacuee Interest (Separation) Rules, 1951 and the Indian Registration Act. In ground No. 6 it is stated that the judgment if allowed to stand would be opposed to section 29 of the Displaced Persons (Rehabilitation and Compensation) Act) 1954 read with Rule 11-E of the Evacuee Interest (Separation) Rules, 1951.

(4) We have heard the learned counsel for the applicant in detail. It is submitted that although the aspects now sought to be brought to our notice were never urged at the hearing of the appeal yet the Court ought to take them into consideration if it finds that there is an error apparent on the face of the record. The observation made in Mt. Jamna Kuer v. Lal Bhadur and others Air 1950 FC 131 (1) that if there is an error apparent on the face of the record then for the purpose of reviewing the decision it would be immaterial whether it is due to the counsel's mistake or has crept in by reason of an oversight on the part of the Court, is relied upon. We are, however, to consider whether there is at all any error apparent on the face of the record? Unless such an error apparent on the face of the record is established the judgment would not call for being reviewed. The scope of the jurisdiction provided by Order 47 Rule 1 of the Civil Procedure Code cannot be equated with the jurisdiction which is exercised under section 96 of the said Code while disposing of a Regular First Appeal.

(5) The counsel for the applicant submits that the jurisdiction for reviewing the judgment would be exercised also where the law applicable has not been applied and the judgment has to be corrected. Reference in this behalf is made to M/s. Thungabhadra Industries Ltd. v. The Government of Andhra Pradesh, : [1964]5SCR174 , (2). We have carefully gone through that judgment. If the law prevailing at the date of decision is transgressed and there is apparent illegality the judgment may be corrected to that extent. The subject matter in controversy otherwise disposed of by a judgment cannot be reopened and reheard. In the guise of an application for review the applicant moving the Court for that limited purpose cannot urge that the appeal be reheard and the finding which suffers from no error should be altered.

(6) The counsel for the applicant urges that the sale certificate Ex. P. 1 is hit by section 17(2) of the Registration Act, 1908. It is submitted that it required compulsory registration. The argument ignores section 17(2) clause 12 which exempts from registration any certificate of sale granted to the purchaser of any property sold by Public auction by a civil or revenue officer. It is conceded that the property in respect whereof sale certificate Ex. P. 1 was issued was competently sold through public auction by the Competent Officer in exercise of the powers given by section 10 of the Act.

(7) Section 17(2) clause Xii of the Registration Act enumerates two kinds of officers who may grant certificate of sale to the purchaser of any property sold at public auction. The distinction is that such an officer may be either a civil or a revenue officer. The competent officers for the purposes of the Act are appointed under section 4 thereof, which is:-

'S. 4. Power to appoint competent officer. (1) The State Government may, with the approval of the Central Government by notification in the Official Gazette appoint as many competent officers as may be necessary for the purpose of performing the functions assigned to them by or under this Act and a competent officer may perform his function in such local area or areas as may be specified in the notification ; (2) No person shall be qualified to be appointed as a competent officer under this Act unless he has held an additional office or at least Five years or has been an advocate or a pleader for at least 7 years.'

Taking into consideration that the State Government has to appoint competent officers with the approval of the Central Government by a notification in the Official Gazette and the persons to be so appointed have to possess the qualifications prescribed by subsection (2) in section 4 it becomes evident that a person appointed as a competent officer would be a civil officer within the meaning of section 17(2) clause Xii of the Registration Act. Ex. P. 1, the sale certificate issued by the competent officer had the protection of clause Xii in section 17(2) of the Registration Act and did not require registration. It is conceded by the learned counsel appearing for the applicant that once it is held that the competent officer acting with in the scope of the provisions of the Act is a civil officer then because of the terms in clause Xii in section 17(2) of the Registration Act the sale certificate issued by such an officer would not require registration.

(8) After sending for the original record the sale certificate Ex. P. 1 has been perused and I find that in order to silence the controversy raised by this application, the document deserves to be reproduced:-

'INthe Court of Shri Sundar Lal, Competent Officer, Delhi. Sale Poster Seriall No. 1290 Case No. 268 Claim No. 577 Ideal Bank Versus Custodian. Form I Certificate of Sale (See Rule 11-C) This is to certify that Shri Sukhdev Raj S/o L. Niranjan Das and Shrimati Iila Nanda W/o L. Sukhdev Raj R/o 920 Shish Mahal, Delhi are the purchasers at a sale by public auction on the 18th day of March 1958, in pursuance of the powers conferred upon me under section 10 of the Evacuee Interest (Separation Act, 1951 Lxiv of 1951) and the rules made there under. Given under my hand and the seal of my office this 12th day of May, 1958. Amount Of CONSIDERATION: Rs. 23,200.00 (Rupees twenty three thousand and two hundred) only, which have been paid in cash. Description Of Composite PROPERTY: property bearing Municipal Number 1112 to 1113 (New) 1041 (old) in Ward Xvi on plot No. 1083 Ellahi Bux Road, Naiwala, Karol Bagh, Delhi, bounded as under:- North : Gali No. 11. East : Lane (Main Road). South : Gali No. 12. West : Khasra No. 1082. Seal. sd/- (Sunder Lal) Competent Officer, DELHI.'

It is mentioned in the document that the certificate of sale has been issued under Rule 11-E of Evacuee Interest (Separation) Rules framed under the Act and that the plaintiffs of the suit were the purchasers at a sale by public auction which was held in exercise of the powers conferred on the Competent Officer by section 10 of the Act. It is significant that the amount of consideration is mentioned as Rs. 23,200.00 and it is stated that the same was paid in cash. The property is then described by metes and bounds and the certificate apart from his seal bears the signatures of the Competent Officer, Delhi. The sale certificate in every aspect enjoys the protection of clause Xii in section 17(2) of the Registration Act, and did not require registration.

(9) At one stage it was urged that we should consider as to when really did the title in the property i.e. the ownership pass to the plaintiffs of the suit. It was suggested that the order of confirmation of sale passed the title and reliance was placed on Jaimal Singh S/o Jawahar Singh and another v. Smt. Gini Devi, Air 1964 Punjab 99, (3) and Bishan Paul v. Mathu Ram Air 1965 SC 1964, (4). It was observed in the Punjab case that the auction purchaser would become the owner of the property with effect from the date mentioned in the sale certificate which would be taken as the date of confirmation of sale although the certificate may have been issued later on. Dealing with similar provisions the Supreme Court in : AIR1965SC1994 , observed that there were distinct stages in an auction sale. The stages were enumerated as (1) the fall of the hammer and the declaration of the highest bid; (2) the approval of the highest bid by the Settlement Commissioner or officer appointed by him; (3) payment of the full price after this approval; (4) grant of certificate; and (5) registration of the certificate. The Supreme Court observed that the intention seemed to be that the title would pass when the full price is realised which would be clear from the certificate required to be issued under the Rules.

(10) The registration of the certificate will be necessary only where it does not enjoy the protection of section 17(2) clause Xii of the Registration Act. In this case it has been held that Ex. P. 1 the sale certificate did not require registration. It is mentioned in Ex. P. 1 that the plaintiffs of the suit i.e. the appellants in R.F.A. No. 21-D/ 63 had paid the amount of consideration i.e. Rs. 23,200.00 in cash for acquiring the ownership of the property. The sale certificate proved that ownership had been acquired by paying the price determined by the fall of the hammer which closed the public auction of the property.

(11) We have been invited to Rule 11-E contained in the Evacuee Interest (separation) Rules framed under the Act. That rule provides that where a property is sold through public auction the Competent Officer shall grant to the purchaser the sale certificate in form We have seen form I and we find that Ex. P. 1 is in that form. It states the amount of consideration and contains the description of the property. In the light of the observations made by the Supreme Court in : AIR1965SC1994 , (4), the ownership passed when the full price was paid in consequence whereof the requisite sale certificate Ex. P. 1 was issued. Throughout the litigation the purchasers remained the established owners of the property. There is no error apparent on the face of the record or otherwise arising out of the want of compliance with any of the provisions contained in the Registration Act or the Evacuee Interest (separation) Act or the Rules framed there under.

(12) The reliance placed on section 29 of the Displaced Persons (Compensation and Rehablitation) Act, 1954 is also unmerited. That provision protects persons in 'authorised occupation' and that too for a period not exceeding two years. The argument invoking section 29 has not been pressed. We may notice that it was never pleaded in the written statement that the applicant who has now desired a review was a displaced person. The precise plea in paragraph 8 of the written statement was that the applicant had been put into possession by Shri R. M. Mehta whose alleged ownership acquired through the purchase at an auction was extinguished by the order setting aside the sale. It was not pleaded that Shri R. M. Mehta had let out the premises. The plea put forward as defendant by the present applicant was that he had acquired possession on account of an agreement with Shri Mehta which postulated that the property will be sold to him. Shri R. M. Mehta, the sale in his favor having been set aside, lost the right to pass any title in the property. In that situation the applicant's possession was not that of a person in 'authorised occupation'.

(13) No case was pleaded in the written statement in respect of which section 29 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 may be invoked. Even otherwise in terms of the proviso in that provision the protection was limited to a period not exceeding two years which period was to start from the date of the transfer and the property in this case was transferred as far back as in 1958. It was observed in M/s. Bombay Salt and Chemical Industries v. L. J. Johnson and others, : AIR1958SC289 , (5) that the title in the property passes on the issuance of a sale certificate. It is true that there the Supreme Court was dealing with similar but not identical provisions. The observations contained in : AIR1958SC289 and : AIR1965SC1994 , however, lead to the conclusion that the entire price i.e. Rs. 23,200 having been paid in cash and the requisite sale certificate having been issued the appellants became the owners of the property in 1958 and there is no error muchless any error apparent on the face of the record which may persuade that the judgment by which R.F.A. 21-D/63 was disposed of on the 30th of July, 1973, be reviewed. The application is meritless and is dismissed. There will be no order as to costs.


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