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P.M. Natarajan Chettiar and ors. Vs. Sitalakshmi Ammal and ors - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1948Mad243; (1947)2MLJ452
AppellantP.M. Natarajan Chettiar and ors.
RespondentSitalakshmi Ammal and ors
Cases ReferredNaidu v. Kadiriyasami Naicker
Excerpt:
- - in the present case the description is clearly to the effect that what was intended to be brought to sale was the house which was the subject-matter of a usufructuary mortgage......no. 190 of 1933 and purchased by the present appellants, who are defendants 1 to 4 in the suit. a sale certificate was issued in their favour on the 4th august, 1938 and on 7th october, 1941, possession was delivered.2. the plaintiff in o.s. no. 97 of 1943 on the file of the district munsiff of devakottah obtained a decree in s.g.s. no. 23 of 1941 on the file of the subordinate judge of devakottah against defendants 5 and 6 herein and filed e.p. no. 520 of 1941 for executing the decree, seeking to attach the suit property, and defendants 1 to 4 who had purchased the property in the sale in execution of the decree in o.s. no. 190 of 1933 preferred a claim on the ground that the property sought to be attached was comprised in their sale certificate, dated 4th august, 1938. the claim was.....
Judgment:

Yaha Ali, J.

1. This appeal arises out of a suit under Order XXI, Rule 63 of the Code of Civil Procedure to set aside a summary order on a claim petition. In O.S, No. 190 of 1933, District Munsiff's Court, Tirupur, an attachment before judgment was taken out of the properties belonging to defendants 5 and 6 in the present suit. The execution petition was transferred to the District Munsiff's Court, Devakottah, and the property involved in the present suit was attached by that Court. In due course O.S. No. 190 of 1933 was decreed. On 3rd May, 1938, the attached property was brought to sale by the decree-holder in O.S. No. 190 of 1933 and purchased by the present appellants, who are defendants 1 to 4 in the suit. A sale certificate was issued in their favour on the 4th August, 1938 and on 7th October, 1941, possession was delivered.

2. The plaintiff in O.S. No. 97 of 1943 on the file of the District Munsiff of Devakottah obtained a decree in S.G.S. No. 23 of 1941 on the file of the Subordinate Judge of Devakottah against defendants 5 and 6 herein and filed E.P. No. 520 of 1941 for executing the decree, seeking to attach the suit property, and defendants 1 to 4 who had purchased the property in the sale in execution of the decree in O.S. No. 190 of 1933 preferred a claim on the ground that the property sought to be attached was comprised in their sale certificate, dated 4th August, 1938. The claim was allowed by order, dated 23rd April, 1942, by the District Munsiff and the present suit O.S. No. 97 of 1943 was brought to set aside that claim order. The plaintiff-first respondent contends that there are two houses west of Doraiswami Ayyangar's house, one a large house which lies to the east of Venkatachalam Ayyangar's house and another a small house which lies between that large house and Doraiswami Ayyangar's house. Her case is that while the large house formed the subject-matter of sale proceedings and the sale certificate under which the appellants have acquired it, the small house which lies immediately to the west of Doraiswami Ayyangar's house was not comprised in the sale certificate.

3. On 16th January, 1929, father of defendant 6 executed an usufructuary mortgage in favour of Lakshmana Ayyangar of the large house only. Subsequently on 21st March, 1933, defendants 5 and 6 executed a simple mortgage in favour of Srinivasa Ayyangar of both the houses. The appellants' contention is that there were no separate and distinct houses but that both of them formed one house and that house was brought to sale and purchased by them at the Court auction and was conveyed to them by the sale certificate, dated 4th August, 1938. The learned District Munsiff found that in pursuance of the Court sale, the appellants purchased both the houses and obtained delivery of the same. As regards the houses being separate, although he mentioned a number of facts to the contrary he was of the opinion that there was a composite assessment by the municipality for both the houses, although they bore separate door numbers. This finding was rightly found by the lower appellate Court to be incorrect. From the fact that there were separate door numbers, it can be inferred that there would have been separate assessments. As pointed out by the learned Subordinate Judge the usufructuary mortgage Ex. P-1 itself shows that the two houses were separate as the suit house described as 'very small house' is mentioned therein as one of the eastern boundaries of the other house. There is also oral evidence to the same effect. The finding of the learned Subordinate Judge on this matter being based on satisfactory and sufficient evidence and being one of fact has to be upheld. The only question is which is the house that was sold to the appellants in the Court sale. While the District Munsif had taken different view about it, the learned Subordinate Judge taking into consideration, the recitals in the sale proclamation, the attachment warrant, the delivery application and warrant and the sale certificate came to the conclusion that the appellants were throughout proceeding only against one house, viz., the house that was the subject-matter of the usufructuary mortgage, dated 16th January, 1929. I may refer to one of those documents, viz., the affidavit that was filed for proclaiming the sale. In it two of the encumbrances mentioned are the usufructuary mortgage, dated 16th January, 1929, and a later deed of assignment of that mortgage. Against both those items it is stated in that affidavit Ex. P-4 that the ' suit property ' was usufructuarily mortgaged. In paragraph 9, again, while giving the details of encumbrances, it is reiterated that the 'suit property' was usufructuarily mortgaged to Lakshmana Ayyangar. The same description is repeated in all the subsequent documents so that the only possible inference from those recitals is that what was intended to be brought to sale was the property which formed the subject-matter of the usufructuary mortgage and nothing more. I have already pointed out that the two houses were distinct and that the suit house which is the smaller house was subject to a simple mortgage of 21st March, 1933. If that house also was sought to be sold the encumbrance of 1933 would have had to be mentioned. That does not find a place in Ex. P-4. As against these indicia, there is the fact that in all these documents where a schedule is given describing the boundaries, the eastern boundary of the property intended to be sold is mentioned to be Doraiswami Ayyangar's house. If that description is correct, it would take in the suit house also. Learned advocate for the appellants points out that this disparity between the description of boundaries and the precise property intended to be sold occurring in the other documents does not appear in the sale certificate itself and that the sale certificate being a document of title should form the sole basis for determining the property that has passed under it and no extrinsic evidence can be taken or other documents referred to for the purpose of finding out the property that was intended to be conveyed under the sale certificate. He draws attention to a decision of Devadoss and Sundaram Chetti, JJ. in Natesa Pattar v. Ganapathi Subba Pattar (1926) 53 M.L.J. 68. There, there was no disparity between the sale certificate and other documents connected with the sale, viz., the attachment list, attachment warrant, sale proclamation, etc. The only question was whether the execution sale conveyed to the appellants the interest of the plaintiffs in the suit property and whether what was bought by him was only the share of the fourth defendant. That had to be determined with reference to evidence outside the record of sale proceedings, which was a thing which was not permissible having regard to the general principle that when the document is plain and unambiguous, extrinsic evidence as regards the intention cannot be looked into. I may in this Connection refer to the ruling of the Judicial Committee in Thakur Barmha v. Jiban Ram Marwari and Srimohun Marwari . There a sale certificate was set aside and the doubt that had arisen was as regards the identity and not the description. If a property fully identified in the schedule is mis-described that would be a different position. Their Lordships pointed out

that which is sold in a judicial sale of this kind can be nothing but the property attached' and that property is conclusively described in and by the schedule to which the attachment -refers.

In fact the scheme of the Civil Procedure Code in a case of the present kind is that a complete description of the property establishing its identity shall be given at the time of attachment, and later at the time of proclaiming the sale a full description so as to establish its identity has to be furnished along with encumbrances and the price subject to those encumbrances. It is the property which is so attached and which is so proclaimed alone that is sold without any warranty of title. After the expiry of a specified period of time if there is no application for setting aside the sale, the sale becomes absolute, and the title in the auction purchaser follows upon the confirmation of the sale as from the date of the sale. Subsequently a sale certificate is issued in order to clothe the auction purchaser with a formal document of title. The title to the property takes effect not from the date of the sale certificate but from the date of the sale. It is clear from this that a description that is given in the earlier documents, viz., the attachment list and the affidavit filed for proclaiming the sale with reference particularly to its identity is particularly important. In the present case the description is clearly to the effect that what was intended to be brought to sale was the house which was the subject-matter of a usufructuary mortgage. There was a misdescription, no doubt, in the schedule which was carried throughout describing the property intended to be brought to sale as the property lying to the west of LWaiswami Ayyangar's house but having regard to the undoubted fact that only the large house was intended to be sold and was actually sold this description of the boundary to my mind does not affect the position. Reference was made on the appellants' side to Rama-bhadra Naidu v. Kadiriyasami Naicker It is not necessary for me to go into the facts of that case and it will be sufficient for me to point out that there the learned Judges of the High Court regarded the words set out in the sale certificate as capable of explanation and limitation by reference back to the mortgage itself. Their Lordships of the Privy Council pointed out that they would agree with this conclusion if they placed the same construction on the sale certificate as that accepted by the learned Judges of the High Court but that they were unable to do. Here also the attempt was not at tabooing any reference to the earlier records in the sale proceedings but prohibiting an attempt to go back to the pleadings or to other documentary evidence produced at the trial in order to supplement or elucidate the extent or nature of the property conveyed by the sale certificate. For these reasons I agree with the view taken by the learned Subordinate Judge and dismiss this second appeal with costs.

4. Leave refused.


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