PROMOTHA NATH PAL CHOUDHARY Vs. SOURAV DASI CHOWDHURANI

JUDGEMENT

(1.) This is an appeal under Clause 15 of the Letters Patent in an appeal from an appellate decree, wherein the two Judge of the Division Court have been equally divided in opinion upon an important question of law, namely, who the rule embodied in Section 66 of the Civil Procedure Code, 1908, is applicable to an execution purchaser whose title war perfected when Section 317 of the Civil Procedure Code, 1882, was in force.

(2.) The plaintiff instituted this suit for a declaration of his title by purchase at an execution sale held on the 11th August 1903, His case is that he purchased the property in the name of his son, who is the first defendant in this litigation. The sale was confirmed under Sections 314 and 316 of the Code of 1882 on the 30th July 1906. The sale certificate, however, was not taken out till the 24th April 1909 but the title of the purchaser accrued, under Section 316, from the date of the confirmation of the sale that is from the 30th July 1906, which mast be taken to be the date of the sale certificate. This sale certificate sets out the name of the recorded purchaser as the purchaser of the property, The first defendant, the recorded purchaser, appears to have subsequently contracted to sell the property to the second defendant, with the consequence that in a litigation between the two defendants the second defendant obtained a decree for a conveyance by the first defendant, in his favour. As the plaintiff was not made a party to that suit, he now seeks a declaration that the first defendant was not the real purchaser and that the second defendant has not acquired any title to the disputed property under his conveyance The suit has been dismissed on the ground that it is barred under the pro vision of Section 66 of the Civil Procedure Code of 1908.

(3.) The plaintiff now contends that Section 66 of the Code of 1908 has no application, and that the rights of the parties are governed by Section 317 of the code of 1882, which was in force at the time when the execution sale took place and was confirmed. The sale certificates, as we have already pointed out was granted on the 24th April 1909 after the Code of 1908 had come into force, but it has not been contended, and, in our opinion, it could not be seriously contended, that the delay m the issue of the certificate could in any way affect the position of the parties. A sale certificate, it is well established, does not create title, but is merely evidence of title Tantardhari Sing v. Sundar Lal Missir 7 C.L.J. 384 and Braja Nath Pal v. Joggestear Bagchi Ind. Cas. 62 : 9 C.L.J. 346