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Ramaraja Vs. Arunachala and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai
Decided On
Judge
Reported in(1883)ILR7Mad248
AppellantRamaraja
RespondentArunachala and anr.
Cases ReferredSobhagchand Gulabchand v. Bhaichand I.L.R.
Excerpt:
civil procedure code, section 316 - registration act, section 50--certificate of sale registered--prior mortgage optionally registrable unregistered--rights of a purchaser in execution of money decree. - .....section 50 does not operate. it is not an order of court (1) nor a certificate granted under the land improvement act (l) section 107 of act xii of 1879 amended section 89 of the registration act, 1877, and imposed on the court granting a certificate of sale the duty, which had already been imposed on an officer granting a certificate under the land improvement act, of transmitting a copy to the registering officer; but a certificate of sale may still claim priority under section 50, though a certificate under the land improvement act cannot.4. it is possible that the legislature may have intended to exclude certificates of sale, along with decrees and orders of court and certificates under the land improvement act, from the operation of that section, but it has not expressly done so,.....
Judgment:

Muttusami Ayyar, J.

1. The plaintiff (appellant) claims the amount due on a hypothecation bond executed in his favour by the first defendant in 1876. The second defendant is the purchaser of first defendant's right, title, and interest, which was sold in execution of a money decree in original suit 414 of 1879. The Munsif gave plaintiff a decree. The District Judge in appeal found in favour of plaintiff's bond, but dismissed his suit on the ground that the personal remedy was admittedly barred, and that the second defendant's certificate of sale, being duly registered, took effect as regards the property against plaintiff's unregistered security under Section 50 of the Registration Act, 1877. The sole question for our determination is whether a Court's certificate of sale, if registered, takes effect within the meaning of that section against all prior unregistered encumbrances.

2. The District Court has presumed, in the absence of any statement to the contrary, that the Court which sold the property did not comply with the provisions of Section 107, Act XII of 1879, by sending a copy of the certificate for registration. The proper presumption would be that everything was rightly done, but that seems to make no material difference in the present case since the [252] certificate itself has been registered. We cannot doubt that a certificate is an instrument which declares a right in the property sold.

3. A certificate of sale is not one of the documents in favour of which Section 50 does not operate. It is not an order of Court (1) nor a certificate granted under the Land Improvement Act (l) Section 107 of Act XII of 1879 amended Section 89 of the Registration Act, 1877, and imposed on the Court granting a certificate of sale the duty, which had already been imposed on an officer granting a certificate under the Land Improvement Act, of transmitting a copy to the registering officer; but a certificate of sale may still claim priority under Section 50, though a certificate under the Land Improvement Act cannot.

4. It is possible that the Legislature may have intended to exclude certificates of sale, along with decrees and orders of Court and certificates under the Land Improvement Act, from the operation of that section, but it has not expressly done so, and therefore, if the question depended only on the wording of the section, we should be compelled to hold that a certificate of sale, if duly registered, does take effect against all unregistered encumbrances.

5. We have, however, been referred to the case of Sobhagchand Gulabchand v. Bhaichand I.L.R. 6 Bom. 193. That is a clear authority for the position, 'that a purchaser by registering his certificate of sale does not acquire a title free from obligations arising from (a prior) mortgage.' Some of the remarks of the learned Judges, no doubt, proceed upon the question of notice, and in the view of this Court mere notice is wholly immaterial in questions of priority arising under Section 50. But there are substantial reasons for the distinction between voluntary sales and sales ordered by the Court, and in particular the fact noticed by Mr. Justice Melville that the Court sells only the right, title, and interest of the judgment-debtor, subject to all valid encumbrances. An unregistered mortgage is not in itself invalid, and a person who has bought subject to it cannot afterwards take advantage of the Registration Act to avoid it. The certificate of sale of the right and title remaining in the mortgagor is not inconsistent with the mortgage itself : both can subsist together and therefore no question of priority arises. The decision is obviously consonant with justice, and we are content to follow it.

6. The result is that the decree of the Lower Appellate Court must be reversed, and that of the Court of the First Instance restored. The second defendant must pay the plaintiff's costs of both appeals.


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