Full Judgment Text
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PETITIONER:
P. UDAYANI DEVI
Vs.
RESPONDENT:
V.V. RAJESHWARA PRASAD RAO & ANR.
DATE OF JUDGMENT24/02/1995
BENCH:
AGRAWAL, S.C. (J)
BENCH:
AGRAWAL, S.C. (J)
FAIZAN UDDIN (J)
CITATION:
1995 AIR 1357 1995 SCC (3) 252
JT 1995 (3) 523 1995 SCALE (2)43
ACT:
HEADNOTE:
JUDGMENT:
S.C. AGRAWAL, J.:
1.leave granted.
2.We have heard learned counsel for the parties.
3.These appeals are by the auction purchaser of a property
sold to him in execution proceedings. A money decree was
passed against respondent No. 1 in O.S. No. 148 of 1970
filed by respondent No. 2. In execution of the said decree
the property of respondent No. 1 was sold by auction on
March 26, 1985 to the appellant whose bid of Rs. 3,01,000/-
was the highest. In the sale certificate dated April 8,
1987 the property that was sold was thus described in the
Schedule:
"East Godavari District, Rajahmundry Taluk,
Gandhi-nagaram. Block No. 11, Rajahmundry
Belonging to the judgment debtors and named as
"Chandrika Nilayam" in S.S. No. 67 and present
No. 21-6 terraced house, situated within the
following boundaries -
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East : House of M.V. Reddy
South : Main Road
West : Park
North : House of Mullapudi Satyanaranayam
4. The same description was given in the sale
proclamation. Before issuance of the sale certificate
respondent No. 1 had filed petitions, E.A. Nos. 397 of 1985
and 506 of 1985 under Order 21 Rules 90 and 91, C.P.C., for
setting aside the sale which was held on March 26, 1985.
One of the grounds that was urged for setting aside the sale
in the said petitions was that respondent No. 1 had only
1/4th share in the property and further that the property
was worth Rs. 5 lakhs and the bid was too low. Along with
the said petitions respondent No. 1 also filed a schedule
which gave the description of the property in the same terms
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as mentioned in the sale proclamation and sale certificate.
The said petitions were dismissed by the executing court by
order dated April 21, 1986 and the sale was confirmed on
April 8, 1987 and the sale certificate was granted to the
appellant. In pursuance of the sale certificate the
appellant obtained possession of the entire property within
the boundaries as mentioned in the sale certificate on April
22, 1987. After the delivery of the possession respondent
No. 1 filed a suit, O.S. No. 107/87, in the court of
Subordinate Judge, Rajahmundry for a declaration that the
sale certificate dated April 8, 1987 issued in favour of the
appellant does not pass title to the property bearing Door
No. 14/7 and relates only to the terraced building and for a
permanent injunction restraining the appellant from
interfering with the peaceful possession and enjoyment of
respondent No. 1 in respect of the other building. During
the pendency of the said stilt respondent No. 1 filed a
petition, F.A. No 478 of 1990, in the execution proceedings,
under Section 47 read with Section 151 C.P.C. wherein he
prayed for a declaration that the sale certificate does not
pass title to the appellant in respect of the property
mentioned in the schedule to the said application,
hereinafter referred to as "the petition schedule property",
on the ground that even though there was no attachment and
sale of the said property and even though the appellant did
not purchase the same and even though the sale certificate
does not contain it the appellant had taken the delivery
of possession of the said property in the execution
proceedings. The boundaries of the petition schedule
property are thus described by respondent No. 1 in the said
pension -
East : House belonging to M.V. Reddy
West : Terraced building now taken de livery by the first
respondent (appellant herein)
South : Main Road
North : House belonging, to Mullapudi Satyanarayana
5. The said petition was contested by the appellant as
well as by the decree holder (respondent No. 2.) who
asserted that the petition schedule property was also
brought to sale after attachment and was in fact sold by,
the court and it is also covered by the sale certificate.
The Subordinate Judge, by order dated November 5, 1991, dis-
missed the said petition of respondent No. 1. It was held
that the petition schedule property is located within the
boundaries mentioned in the schedule to the exccu-
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tion petition as well as in the schedule attached to the
sale certificate. The Subordinate Judge rejected the
contention that there were two buildings, the terraced
building and the upstair building, and held that there is
only one structure on the terrace which looks like a stair-
case room and there is absolutely no upstair building at all
and that the major portion of the building is aterraced one
and that in spite of the location of a small room on the
terrace the building remains a terraced building only.
According to the Subordinate Judge the sale proclamation and
sale certificate clearly go to show that the property
purchased by the appellant extends upto the park on the west
and upto the house of M.V. Reddy on the east and that the
petition schedule property is part and parcel of the
property within the said boundaries and, therefore, the
petition schedule property was also purchased by the
appellant under the sale certificate and the appellant was
entitled for the entire property including the petition
schedule property under the sale certificate and is entitled
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to take the delivery of the entire property including the
petition schedule property. Feeling aggrieved by the said
order of the Subordinate Judge respondent No. 1 filed a
revision petition, C.R.P. No. 3998 of 1991, in the Andhra
Pradesh High Court. The said revision petition was allowed
by the High Court by judgment dated March 29, 1994. The
High Court was of the view that when respondent No. 1 raised
the contention that within the boundaries there is other
upstair building with vacant site of 300 and odd sq. yards
and that the property that was sold pursuant to the auction
and delivered was only the terraced building, the lower
court ought to have appointed a Commissioner in order to
find whether in fact there is any upstair building in the
said site and that if there is also upstair building and
vacant site within the boundaries the appellant is not
entitled to take delivery of the upstair building as the
only property that was brought to sale was the terraced
building within the boundaries mentioned therein and further
that the sale certificate does not refer to the upstair
building and the vacant site. The High Court, therefore,
remitted the matter to the executing court with the
direction to appoint a Commissioner to make local inspection
of the petition schedule property and if, within the
boundaries mentioned in the sale certificate, there is an
upstair building which is not included in the sale
certificate and the vacant site adjacent to it he may direct
redelivery of that property and if there is no upstair
building and the vacant site within the boundaries mentioned
in the sale certificate, the Subordinate Judge may dispose
of the execution application in accordance with law. The
appellant filed a review petition for the review of the said
order of the High Court but the same was dismissed by order
dated November 23, 1994. These appeals are filed against
the said orders of the High Court dated March 29,1994 and
November 23, 1994.
6.Shri R.F. Nariman, the learned senior counsel appearing
for the appellant, has submitted that the High Court, in
exercise of its revisional jurisdiction under Section 115
C.P.C., was in error in interfering with the order passed by
the Subordinate Judge dismissing the application filed by
respondent No. 1 under Section 47 read with Section 151
C.P.C. The submission of Shri Nariman was that the
boundaries of the property which was sold in the auction
sale are clearly indicated in the sale certificate and they
are the same boundaries
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as are mentioned in the sale proclamation and that in view
of the said description in the sale certificate the entire
property lying within those boundaries was the subject-
matter of sale in favour of the appellant. The submission
of Shri Nariman was that the sale certificate issued in
favour of the appellant is conclusive and that the
Subordinate Judge had correctly construed it and that there
was no infirmity in the order passed by the Subordinate
Judge which could justify interference by the High Court in
exercise of its revisional jurisdiction.
7. We find considerable substance in this contention. The
position in law is wellsettled that "certificates of sale
are documents of title which ought not to be lightly
regarded or loosely construed." [See : Rambhadra Naidu v.
Kadiriyasami Naicker, (1921) LR 48 IA 1551. In Sheodhyan
Singh & Ors. v. Musammat SanicharaKuer & Ors., 1962 (2) SCR
753, in the sale certificate the boundaries as well as the
plot number were mentioned but there was a mistake in
mentioning the plot number. It was held :
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"The matter may have been different if no
boundaries had been given in the final decree
for sale as well as in the sale certificate
and only the plot number was mentioned. But
where we have both the boundries and the plot
number and the circumstances are as in this
case, the mistake in the plot number must be
treated as mere misdescription which does not
affect the identity of the property sold. [p.
759]
8. In the instant case, we find that in the sale
certificate the boundaries of the property that was sold
have been clearly indicated. In addition, the sale
certificate also gives the description of the property as
"Chandrika Nilayam" bearing the number "S.S. No. 67 and
present No. 21-6". The mention of the words "terraced
house" in the description cannot be construed to mean that
only a part of the property failing within the boundaries
was sold and a part of the said property was left out. The
expression "terraced house" is not an expression of precise
connotation as pointed out by the Subordinate Judge. The
main building having the terrace and a room on the first
floor can properly be described as the terraced house and
other structures and land within the boundaries are part of
the said property. There is no dispute that the possession
of the entire property, including the house having a room on
the first floor, was delivered to the appellant after the
sale certificate has been issued in his favour. What
respondent No. 1 wants is to divide the property mentioned
in the sale certificate in two portions having the following
boundaries
(I) East : House of M.V. Reddy
West : Terraced building mentioned in the sale
certificate
South : Main Road
North : House of Mullapudi Satyanarayana
(II) East : Building having a room on the first floor and
open land
West : Park
South : Main Road
North : House of Mullapudi Satyanarana
9. According to respondent No- 1 only
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property (11) was sold in the auction sale and is covered by
the sale certificate. The plain terms of the sale
certificate do not lend support to this contention. Accord-
ing to the sale certificate the entire property falling
within the boundaries was the subject-matter of the sale.
In view of the said description in the sale certificate it
is not possible to split up the property into two portions
and confine the sale certificate to a part of the property
and thereby alter the boundaries of the property that has
been sold.
10.Moreover, it is settled law that the question as to what
was sold in execution of the decree is a question of fact.
[See :S.M. Jakati & Anr. v. S.M. Borkar & Ors., 1959 SCR
138, at p. 1401 1. In the present case, the Subordinate
Judge, after an examination of the sale certificate and
other documents, has recorded a finding that the entire
property falling within the boundaries mentioned in the sale
certificate has been sold. That was a finding of fact. The
High Court, in exercise of its revisional jurisdiction, was
not justified in reopening the finding of fact recorded by
the Subordinate Judge. The judgment of the high Court
cannot, therefore, be upheld and must be set aside.
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11.The appeals are accordingly allowed, the judgment of the
High Court dated March 29, 1994 as well a.% the order dated
November 23, 1994 arc set aside and the order dated November
5, 1991 passed by the Subordinate Judge is restored. The
appellant will be entitled to his costs.
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