MAULVI NAZIR AHSHAN Vs. DALIP MAHTON

JUDGEMENT

(1.) This is a Rule calling on the opposite party to show cause why the order of the Sub-Judge, second Court of Patna, dated the 7th September 1912, amending the sale certificate granted to Dalip Mahton on the 14th June 1912, should not be set aside and such further order passed as to this Court might seem fit.

(2.) The history of the proceedings which gave rise to this Rule is as follows: There was a mortgage on which the mortgagee brought a suit, the mortgage being of a 3-anna 11-dam share of a certain property. The mortgagee got a decree against that property and became, under the decree, entitled to bring it to sale. He put in a petition for execution asking for the sale of a 3-anna 11-dam share of the property and a sale proclamation was accordingly issued to the effect, that 3-annas 11 dams would be sold. There was a dispute then between the mortgagee and the mortgagor as to the values of some of the properties appearing on the sale proclamation and the result of the dispute was that a petition of compromise was put in in which it was stated that the mortgaged property consisting of 2 annas 11-dams was to be sold. On the footing of that petition of compromise, a sale proclamation was prepared proclaiming that the mortgaged property amounting to 2-annas 11-dams would be sold. The property was then put up to sale and was brought by an outsider, the person who is the opposite party to this Rule; and he obtained a sale certificate for 2-annas 11-dams. What he said he meant to purchase was 3 annas 11 dams as comprised in the mortgage and he accordingly made an application to the Sub-Judge and got the sale certificate amended so as to show a purchase of 3 annas 11 dams which, he said, he intended to purchase instead of 2 annas 11 darns which was to be found in the sale proclamation. Upon this, the present Rule was obtained calling on the purchaser to show cause why the order amending the sale certificate should not be set aside.

(3.) Two main objections there are, it seems to us, to the order which has been made by the lower Court. One is that the Court below had no jurisdiction to make the amendment. In our view, an alteration of this sort does not come either within Section 152 or within Section 153 of the Code of Civil Procedure. It was not the question what the Court intended to sell but the question was what the Court had actually sold in the proceedings and there can be no doubt what the Court did sell in this case. What the effect of the sale proclamation is has been very well stated in the case of Balvant Babaji v. Hira Chand 27 B. 334 at p. 393; 5 Bom. L.R. 217. "The sale", said the learned Judges who decided that case, is a transaction, and consists, as all contracts do, of an offer and acceptance. The offer is made by the Court exercising, in the place of the judgment-debtor and on behalf of his creditor, the disposing power which the judgment-debtor had over the property. This offer is advertised or published by means of the proclamation of sale, which Section 287 requires to specify the property intended to be sold. An advertisement of this nature is an offer to such person as shall fulfil the required conditions as to the highest bid, deposit of 25 per cent. of the purchase money and punctual payment at the prescribed date and other prescribed conditions: and so far as concerns the identification of the property to be offered for sale, it is the only declaration which is authorised or required." In the present case, it is argued that the expression "mortgaged property," to use the words of the learned Vakil, is the dominant feature of the proclamation and, therefore, it must be taken that what was actually sold was the mortgaged property. We cannot agree in this contention because the sale proclamation goes on to describe What is meant by the mortgaged property, namely, that it is 2 annas 11 dams, and the result is that any person, intending to buy and looking at the sale proclamation for the purpose of ascertaining what the Court was offering for sale, would be led to believe that it was offering 2 annas 11 dams, that is to say, what was stated in the proclamation and that is what was sold. There might possibly be a mistake. Whether there was a mistake or not, at any rate, it is perfectly clear, giving the sale proclamation the force which it is expressed to have in the judgment to which we have referred, that what was actually sold was 2 annas 11 dams and that the Sub-Judge had no power whatever to alter the certificate so as to make it appear that the 3 annas 11 dams was sold or to correct the mistake, if there was a mistake at all.