LAWS(PVC)-1903-2-14

BALVANT BABAJI DHONDGE Vs. HIRACHAND GULABCHAND GUJAR

Decided On February 02, 1903
BALVANT BABAJI DHONDGE Appellant
V/S
HIRACHAND GULABCHAND GUJAR Respondents

JUDGEMENT

(1.) The lower Appellate Court has stated the facts of this case as follows: The plaintiff in this case had obtained a decree against all the five brothers; his darkhast was against five brothers. The proclamation of sale announced that the complete interest in the house, subject to the mortgage, was to be sold, but that, when this bailiff made the sale yad he recorded that only the right, title and interest of Yashvant (the eldest brother) was being sold. The confirmation order repeats the terms of the sale yad; so does the sale yad and the tabs (possession) yad. The plaintiff was put in possession of the whole house. There was a miscellaneous application by three of the brothers objecting to the result of the sale, but this was objected. The defendant then sold (sic) the right, title and interest of his debtors (the mother and one brother) and took possession of the house.

(2.) On these facts the lower Appellate Court held that the plaintiff was bound by the misdescription in the sale certificate, and reversed the decree of the Court of first instance. In effect the lower Appellate Court has held the certificate of sale the sole and conclusive evidence of the plaintiff's title as auction purchaser, notwithstanding that it is in conflict with the decretal order, the order on the darkhast for sale and the proclamation, of sale. The plaintiff, has appealed against this decision.

(3.) There is nothing in Section 316 (and nothing has been pointed out in any other part of the Code) which makes a certificate of sale conclusive as to the property sold. It is a significant fact that the words in Section 259 of the Code of 1859 (Act VIII of 1859), which gave a certificate of sale such effect, have been omitted in the present Code. That section required the C8urt to grant a certificate to the person who may have been declared to be the purchaser, to the effect that he has purchased the right, title and interest of the defendant in the property sold, and declared that such certificate shall be taken and deemed to be a valid transfer of such right, title and interest. The Legislature, in advisedly abstaining from reproducing these words, has apparently deprived the certificate of sale of the effect formerly given to it, and has left the question of what property has passed to be determined by the actual sale itself or, in the words of the Privy Council, by what the purchaser has "bargained and paid for." The certificate is, so far as regards the parties to the suit and those claiming through or under them, determinative as to the date from which the property actually sold vests in the purchaser, and Section 317 renders it also practically determinative, in the absence of fraud or the like, as to the identity of the purchaser. Neither section gives it operation to determine what has been sold. Section 316 requires that a certificate shall be granted stating she property sold. That is to say, it is the duty of the Court, not to determine what property is to pass by the sale, but merely to record the already accomplished fact of a transaction that has taken place and to state what has been sold. The Court has no power to do more or to alter the fact of the sale which has actually taken place. Its action in granting the certificate is ministerial and not judicial: Vithal Janardan V/s. Vithojirav Putlajirav (1882) 6 Bom. 586.