Full Judgment Text
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PETITIONER:
SAGAR MAHAVIDYALAYA, SAGAR
Vs.
RESPONDENT:
PANDIT SADASHIV RAO HARSHE AND ORS.
DATE OF JUDGMENT12/07/1991
BENCH:
KASLIWAL, N.M. (J)
BENCH:
KASLIWAL, N.M. (J)
RANGNATHAN, S.
AGRAWAL, S.C. (J)
CITATION:
1991 AIR 1825 1991 SCR (2) 906
1991 SCC (3) 588 JT 1991 (3) 75
1991 SCALE (2)32
ACT:
Code of Civil Procedure, 1908-Section 65 and Order XXI-
Rules 92 and 94-Sale of property takes place when sale
confirmed-Issue of sale certificate a ministerial act and
not judicial.
HEADNOTE:
One Govind Rao Harshe mortgaged some agricultural land
and a house to Lakshmi Chand and Duli Chand Modi. The
mortgagees filed a suit and obtained a preliminary decree
and later a final decree for sale of the property for
realisation of Rs. 5001/13/6 on 26.3.1938, and applied for
execution of the said decree, which was stayed’ because the
mortgagor applied for relief under the C.P. and Berar Relief
of Indebtedness Act, 1939, to save the property from being
sold at auction. Consequent upon his failure to comply with
the conditions of the order passed in those proceedings, the
decree-holders alleging default again applied for the
revival of the execution proceedings and prayed for sale of
the house property in dispute. The judgment-debtor did not
appear before the Executing Court and the said Court held
that the decree-holders were entitled to execute the decree
for the recovery of the debt. Thereupon the judgment-debtor
submitted an application for setting aside the ex-parte
order, which was dismissed and an appeal filed against the
said order was also dismissed by the District Judge. In the
meantime the house was put to auction and the highest bid of
Rs. 6905 was knocked down in favour of one Gopal Rao
Mutatkar on 20.8.1942 and the sale was confirmed vide order
dt. 10.4.1943. Applications filed by the judgment-debtor and
his adult sons seeking to set aside sale were dismissed and
the appeals failed even upto the High Court. In the meantime
the appellant, a registered educational institution, through
its Secretary, moved an application for granting a sale
certificate stating that the house in question was auctioned
by the Court and was purchased by Gopal Rao Mutatkar a
member of the appellant-institution, on 20.8.1942, for
Mahila Vidyalaya, which sale was confirmed on 10.4.43. The
appellant prayed that the certificate be granted in its
favour. A stamp requisite for the purpose was also supplied.
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The execution court on 26.2.1944, ordered that the sale
certificate will issue in the name of Mahila Vidyalaya,
Sagar, through Secretary, G.R. Wakhle and
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accordingly the sale certificate was issued in favour of the
appellant on 8.4.1944. The four sons of the mortgagor filed
a suit impleading the auction purchaser, G.R. Wakhle,
Secretary, mortgagees and their father-mortgagor, as
defendants, praying that the execution sale was not binding
on their interest. The auction purchaser and the former
Secretary of the appellant-institution objected to their
being impleaded as parties to the suit, as according to them
they had ceased to be the functionaries of the appellant and
the suit should have been filed against the appellant itself
and not against its office bearers. Thereafter the
plaintiffs impleaded the appellant as party. This suit by
the sons of the mortgagor was dismissed. The appellant
thereupon as auction purchaser applied for the delivery of
possession, which was granted. Some portion of the property
was in occupation of the widowed sister, Radhabai, of the
original mortgagor and other portions were in the possession
of tenants. The Secretary of the appellant agreed to the
request of the tenants that they will not be ousted as they
were willing to execute rent notes. The appellant later
required the premises and moved the Rent Controller for
permission to serve notices on the tenants to vacate the
premises. All the tenants except Radhabai and the original
mortgagor who had also started living with his sister,
vacated the premises. The appellant then instituted a suit
against them. The trial court dismissed the suit for
ejectment but passed a decree for arrears of rent. The
appeal filed by the appellant against that order was allowed
by the District Judge. The original mortgagor’s appeal
failed before the High Court whereupon the appellant filed a
execution application for ejectment of the occupants which
is still pending as a result of stay order passed in a
subsequent suit filed by Govind Rao Harshe, original
mortgagor, against the appellant for a declaration,
possession and permanent injunction. This suit giving rise
to the present appeal was dismissed by the Trial Court. An
appeal preferred against that order by the legal
representatives of the deceased-plaintiff, was allowed by
the District Judge granting the declaration, delivery of
possession of the house together with a mandatory injunction
directing demolition of some new constructions made by the
appellant. The appellant filed a second appeal before the
High Court which was dismissed by the impugned special
leave. The High Court held that as Goapl Rao Mutatkar was
the auction purchaser, no sale certificate could be issued
by the executing court in favour of the appellant, his bid
being in his personal capacity and not one for and on behalf
of the appellant. It was also held by High Court that Gopal
Rao Mutatkar could transfer his proprietary right by sale or
a gift which he did not do. According to the High Court the
act of the executing court was clearly without jurisdic-
908
tion and the sale certificate being void and inoperative,
conferred no right or title upon the appellant over the suit
property.
Allowing the appeal, this Court
HELD: Once an order is made under Order XXI rule 92,
confirming the sale, the title of the auction purchaser
related back to the date of sale as provided under Section
65, C.P.C. The title in the property thereafter vests in the
auction purchaser and not in the judgment-debtor. The issue
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of sale certificate under order XXI, rule 94, C.P.C. in
favour of the auction purchaser though mandatory but the
granting of certificate is a ministerial act and not
judicial. [917H-918B]
The sale of the property in question was perfectly
valid and as soon as the sale was confirmed in favour of
Gopal Rao Mutatkar under Order XXI Rule 92, C.P.C. Govind
Rao Harshe had no right or title in the property and Gopal
Rao Mutatkar became the owner of the property. [918G]
The High Court did not consider the case in a proper
perspective and took a wholly erroneous view in holding that
the appellant was a trespasser and Govind Rao Harshe could
have filed a suit for possession. The plaintiff Govind Rao
Harshe himself had come forward with a plea that the
execution proceedings and the sale was null and void and
unless he was able to succeed in this regard, which he did
not in the present case, no decree for possession could at
all have been passed in his favour. [919C-D]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 203 of
1975.
From the Judgment and Order dated 12.12.1974 of the
Madhya Pradesh High Court in Second Appeal No. 569 of 1970.
U.R. Lalit, Rameshawar Nath, L.G. Kher and Ravinder
Nath for the appellant.
P.P. Rao, Dr. N.M. Ghatate, S.V. Deshpande, Ms. Priya
Gupta and Ejaz Maqbool for the Respondents.
The Judgment of the Court was delivered by
KASLIWAL, J. This appeal by special leave is directed
against
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the judgment of the High Court of Madhya Pradesh at Jabalpur
dated 12th December, 1974. This litigation has a long
chequered history of more than five decades. The appellant,
the Sagar Mahila Vidyalaya is an educational institution
founded by a section of the public of District Sagar (M.P.)
by giving donations and is duly registered under the
Societies Registration Act (Act XXI of 1860). On 17th
November, 1933 one Govind Rao Harshe had mortgaged some
agricultural land and house known as ‘‘Harshewada’’ to
Lakshmi Chand and Duli Chand Modi. The aforesaid mortgages
filed a suit and obtained a preliminary decree for sale on
14th July, 1937. A final decree for sale for the
realisation of Rs. 5001/13/6 was passed on 26th March, 1938.
On 29th March 1938 the decree holders applied for execution
of the said decree. The execution of the aforesaid decree
was stayed and in the meantime C.P. and Berar Relief of
Indebtedness Act, 1939 came into force. The judgment debtor
Govind Harshe alongwith his minor sons namely, Sadashiv Rao
and Ram Chander Rao applied for settlement of the debts on
14th September, 1939 in the Debt Relief Court, Sagar. the
execution of the final decree for sale had been stayed by
the executing Court as per the provisions of the Relief of
Indebtedness Act. On 11th September, 1940, the Debt Relief
Court reduced the amount and granted instalments.
The creditors filed revision applications against the
aforesaid order of Debt Relief Court. The revision filed by
Lakshmi Chand and Duli Chand was registered as Civil
Revision No. 119 of 1940 while that of another creditor
Pandey Shankernath was registered as Civil Revision No. 27
of 1941. The Additional District Judge disposed of both the
revisions by order dated 29th September, 1941. Ex. P-4 is
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the copy of the order passed in Civil Revision No. 119 of
1940 and its operative part reads as under:
‘‘For the reasons given in paragraph 8 of the order
of C.R. No. 27 of 1941, I hold that a condition can
be prescribed by the D. R. Court in default of
which the order fixing instalments shall cease to
have effect and the whole claim shall become
recoverable. I, therefore, order that the debtors
shall keep the mortgaged property intact by paying
its land revenue in time every year and shall keep
the house in good repairs, as a condition precedent
to the continuance of their right to pay the claim
by instalments fixed by the D.R. Court. In default
of their paying land revenue of the Malik Makbuza
land in time, endangering its sale for its
recovery, and in case they deliberately fail to
keep the mortgaged
910
house in proper repairs or endanger its existence,
this order of instalments shall cease to have
effect and the applicant creditor shall become
entitled to recover the whole amount. Parties will
bear their own costs of this revision.’’
On November, 1941 the decree holders Lakshmi Chand and
Duli Chand Modi applied for the revival of the execution
proceedings on the ground that the judgment debtor had
defaulted in carrying out the directions of the revisional
court and as such the order passed by the Debt Relief Court
granting instalments had ceased to exist and the whole
amount had become payable in lumpsum. the decree holders as
such prayed for the sale of the house property in dispute.
the judgment debtor Govind Rao Harshe did not appear before
the executing court inspite of service of notice and allowed
the execution case to proceed ex parte against him. On
31st March, 1942 the executing court passed a order holding
that the non applicant judgment debtor had committed breach
of the condition and as such the decree holders were
entitled to recover the amount determined by the Debt Relief
Court as due to them at once. It was further held that the
decree holders were entitled to execute the decree for
recovery of debt amount.
The judgment debtor Govind Rao Harshe submitted an
application on 12th August, 1942 for setting aside the ex
parte order dated 31st March, 1942. This application was
dismissed on 13th November, 1942. Civil Appeal filed
against the said order was also dismissed on 6th April, 1943
by the Additional District Judge. In the meantime, the house
mortgaged was put to auction and the highest bid of Rs. 5905
was knocked down in favour of one Gopal Rao Mutatkar on 20th
August, 1942. 1/4th of the auction amount Rs. 1500 was
deposited on the spot and the balance 3/4th amounting to Rs.
4405 was deposited on 4th September, 1942.
The Judgment debtor Govind Rao Submitted an application
under Order XXI Rule 90 C.P.C. for setting aside the sale
dated 20th August, 1942. This application was rejected vide
order dated 6th February, 1943. Miscellaneous Appeal filed
against the said order was dismissed by the Second
Additional District Judge, Sagar vide order dated 19th
December, 1943. It may be noted at this stage that in the
meantime the sale was confirmed vide order dated 10th April,
1943. Sadashiv Rao and Ram Chander Rao, sons of judgment
debtor Govind Rao Harshe who had become adult also moved the
executing Court on 28th September, 1943 that they were also
necessary parties to the execution case as they were also
parties in the proceedings before
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the Debt Relief Court and as they were not made parties in
the execution court, the order passed by the executing court
dated 31st March, 1942 was void and without jurisdiction.
This application was rejected on 13th December, 1943. An
appeal filed against this order was dismissed by the
Additional District Judge, Sagar by order dated 24th April
1944. The Miscellaneous second appeal filed against the
appeal order was also dismissed by the High Court by order
dated 15th December, 1947. In the meantime on 15th January,
1944 an application was submitted by Mahila Vidyalaya, Sagar
(appellant before us) through its Secretary, Shri G.R.
Wakhle for granting the sale certificate to the applicant
Mahila Vidyalaya. It was stated in the application that the
house in question was auctioned by the Court and was
purchased by Gopal Rao Mutatkar on 20th August, 1942 for
Mahila Vidyalaya, Sagar for Rs. 5905 and the auction sale
was confirmed by the Court on 10th April , 1943. It was
prayed that the sale certificate be granted to the
applicant-purchaser (Mahila Vidyalaya). Stamps of Rs. 90
were supplied with the application. A note was also appended
with the application as under:
‘‘That when Gopal Rao son of Madho Rao offered bid
in public auction he was a member of the above
mentioned institution. But at present he is not a
member. Therefore, the following applicant who is
the Secretary of this institution makes this
application.’’
The executing court on 26th February, 1944 passed an order
to the following effect:
‘‘The sale certificate will issue in the name of
Mahila Vidyalaya, Sagar through Secretary, G.R.
Wakhle’’.
The sale certificate was then actually issued in favour of
Mahila Vidyalaya on 8th April, 1944.
It is further important to note that four sons of the
judgment debtor Govind Rao, namely, Sadashiv Rao, Ram
Chander Rao, Sarad Chand (minor) and Ashok Kumar (minor)
filed a Civil suit in the year 1948 (Civil Suit No. 1-A of
1948) for a declaration that the execution sale was not
binding on their interest. It may be noted that initially
this suit was filed against Gopal Rao Mutatkar for Mahila
Vidyalaya, Sagar as defendant No. 1(a), Shri G.R. Wakhle,
Secretary, Mahila Vidyalaya as defendant No. 1(b), Lakshmi
Chand and Duli Chand as defendant Nos. 2 and 3 and Govind
Rao Harshe (father of the
912
plaintiffs) as defendant No. 4. In that suit Gopal Rao
Mutatkar and G.R. Wakhle filed their written statements and
raised an objection that they were unnecessarily made
parties as they had ceased to have any connection with the
Mahila Vidyalaya. Ex. P-22 is the copy of the written
statement dated 10th March, 1948 filed by Gopal Rao Mutatkar
in which he admitted that the house under dispute was
auctioned on 20th August, 1942 and the same was purchased by
the Sagar Mahila Vidyalaya, Sagar through him and that
defendant No. 1-b (G.R. Wakhle) as Secretary of the said
Mahila Vidyalaya had made an application for issue of sale
certificate and for possession of the house. The Sagar
Mahila Vidyalaya, Sagar was a registered institution and
the suit should have been filed against the institution
itself and not in the name of its office bearers. Shri G.R.
Wakhle was the Secretary of the Sagar Mahila Vidyalaya,
Sagar in 1942 and 1943. He was no longer its secretary and
the present Secretary of the said institution was Mr.
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Kamlakar Nagarkar. It was thus prayed that the defendants
1-a and 1-b had been unnecessarily joined as parties to the
suit and should be discharged. Thereafter, the plaintiffs
impleaded Mahila Vidyalaya, Sagar as party. This suit filed
by the aforementioned four sons of the judgment debtor was
also dismissed on 27th December, 1949 and costs were
imposed not only on the plaintiffs but also on defendant No.
4 i.e. Govind Rao Harshe, the judgment debtor. The defendant
No. 4 was also required to pay Rs. 300 to defendants 1, 2
and 3 as compensatory costs. No further appeal was
preferred against this judgment and decree.
The Sagar Mahila Vidyalaya, Sagar in the capacity of
auction-purchaser then applied for the delivery of
possession. The possession was delivered to Mahila Vidyalaya
on 24th March, 1951. At the time of delivery of possession
some portion of the house was in the occupation of Smt.
Radha bai, widowed sister of the judgment debtor, Govind Rao
Harshe and other portions were in the occupation of the
tenants. The Secretary of the Mahila Vidyalaya Agreed to
the request of the tenants including Smt. Radha Bai that
they will not be ousted as they were willing to execute rent
notes. Thereafter, Mahila Vidyalaya being in need of more
occupation moved the Rent Controller for permission to serve
notices on the tenants to vacate the premises. The
permission was granted by the Rent Controller on 10th March,
1953 after service of the notices, all the tenants except
Mst. Radha Bai vacated the premises and handed over
possession to Mahila Vidyalaya. The Mahila Vidyalaya then
instituted a suit (Civil Suit No. 100-A of 1954) against
Mst. Radha Bai and also Govind Rao Harshe who had started to
live with his family in the portion occupied by Mst. Radha
bai as her
913
licensee. The Trial Court dismissed the suit for ejectment
but passed a decree for arrears of rent against Mst. Radha
Bai alone. The appeal filed by the Mahila Vidyalaya was
allowed by the Additional District Judge by judgment dated
27th October, 1957. Against this decision, Govind Rao
Harshe alone preferred an appeal in the High Court and Mst.
Radha Bai was impleaded as respondent No. 2. The High Court
by its judgment dated 29th April, 1960 dismissed the second
appeal filed by Govind Rao Harshe. The Mahila Vadyalaya
then filed an execution application for ejectment of the
occupants and the same is still pending as a result of stay
order passed in a subsequent suit filed by Govind Rao
Harshe, which is now the subject matter of the present
appeal before us.
In the above background, we would, now state the facts
of suit No. 133 of 1960 filed in the Court of Civil Judge,
Class I, Sagar on 26th November, 1960 by Govind Rao Harshe,
which has culminated in the present appeal. Govind Rao
Harshe filed the suit against Mahila Vidyalaya for a
declaration, possession and permanent injunction. Plaintiff
Govind Rao Harshe died on 14th December, 1967 during the
pendency of the suit and all the respondents in the present
appeal were substituted in his place as his legal
representatives. The suit was dismissed by the Trial Court
on 13th December, 1968. On an appeal the District Judge,
Sagar allowed the appeal and decreed the suit in favour of
the present respondents granting the declaration, delivery
of possession of the house together with a mandatory
injunction directing demolition of some new constructions
made by the Mahila Vidyalaya. Aggrieved against the judgment
of the First Appellate Court, the defendant Mahila Vidyalaya
filed a second appeal before the High Court. The High Court
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by order dated 12th December, 1974 dismissed the appeal.
The defendant Mahila Vidyalaya in the above circumstances
have come in appeal by the grant of special leave.
The High Court held that as Gopal Rao Mutatkar was the
auction purchaser, no sale certificate could be issued by
the executing court in favour of the appellant Mahila
Vidyalaya. It was held that the bid in the auction was made
by Gopal Rao for himself and not on behalf of Mahila
Vidyalaya. The deposit of auction money was also made in
his own name and the order dated 10th April, 1943 confirming
the sale was also made in his name. The High Court affirmed
the finding of the First Appellate Court that Gopal Rao
Mutatkar did not purchase the property in the auction acting
on behalf of the appellant and the First Appellate Court
rightly held that Gopal Rao Mutatkar was the auction
purchaser ad the sale was confirmed in
914
his name and the deposited full sale amount in his own name.
The High Court also held that Gopal Rao Mutatkar could only
transfer his proprietary right by sale or a gift which he
did not do. In the circumstances, there was no transfer of
the proprietary rights in favour of the appellant Vidyalaya
and if that was so, no certificate could be issued in favour
of the Mahila Vidyalaya. The act of the executing court was
clearly without jurisdiction and the sale certificate being
void and inoperative conferred no right or title upon the
appellant Mahila Vidyalaya over the suit property. The High
Court further held that suit filed on 26th November, 1960
being within 12 years from 24th March, 1951 was within time.
The plaintiff Govind Rao Harshe was never ousted by Gopal
Rao Mutatkar who was the auction purchaser. He was
dispossessed by a person who had no title. There was,
therefore, no question of filing a suit for setting aside
the sale. It was further held that the plaintiff in this
case was not required to file a suit for getting the sale
set aside when he was pleading that the sale itself was
void. A void sale could be ignored by a true owner and it
did not affect his title. The High Court thus took the view
that the suit for possession on the basis of title was
governed by Article 144 of the Limitation Act, 1908. In
either case, whether Article 142 or 143 of the Limitation
Act, 1908 is applied, the suit is within time.
We have heard learned counsel for the parties and have
thoroughly perused the records. In our view the High Court
completely misdirected itself and wrongly ignored the
earlier decisions between the parties and we are, therefore,
inclined to allow this appeal.
The admitted facts of the case are that the house in
question was auctioned in the execution of a decree for sale
obtained by the mortgagees Lakshmi Chand and Duli Chand
Modi. Gopal Rao Mutatkar took part in the auction bid and
it was knocked down in his favour on 20th August, 1942. The
sale was confirmed by an order of the executing court dated
10th April, 1943. Govind Rao the judgment debtor submitted
an application for setting aside the sale under Order XXI
Rule 90 C.P.C. but remained unsuccessful. The steps taken
by his adult sons Sadashiv Rao and Ram Chander Rao for
impleading them as parties also proved futile. It is an
admitted position that an application was submitted by the
Mahila Vidyalaya through its Secretary as early as 5th
January, 1944 for issue of a sale certificate in its name as
the house was purchased in the auction for the Vidyalaya by
Gopal Rao Mutatkar as a member of the institution. The
Court on 26th February, 1944 ordered that the sale
certificate be issued to Mahila Vidyalaya. The necessary
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stamps for the sale certificate were supplied
915
by the Mahila Vidyalaya and the sale certificate was
actually issued in the name of the Mahila Vidyalaya on 8th
April, 1944. It is important to note that no finger was
raised nor any steps were taken by the judgment debtor or
his sons objecting the issue of sale certificate in favour
of Mahila Vidyalaya. A suit was brought in the year 1948 by
the four sons of the judgment debtor Govind Rao Harshe. The
two adult sons were those who had already remained
unsuccessful in challenging the order of the Court dated
31st March, 1942 and two sons Sarat Chand and Ashok Kumar
were those who were born in the meantime. This suit filed
in 1948 was for a declaration that the execution sale was
not binding on their interests. It is worthwhile to note
that this suit was initially filed against Gopal Rao
Mutatkar and G.R. Wakhle but subsequently the plaintiffs
impleaded the Mahila Vidyalaya in view of an objection
raised by Gopal Rao Mutatkar and G.R. Wakhle that the house
in question was actually purchased by Mahila Vidyalaya and
the sale certificate was also issued in the name of Mahila
Vidyalaya. This suit was dismissed on 27th December, 1949
and had become final as no appeal was preferred against the
dismissal of the suit. It may be further noted that
application for delivery of possession to auction purchaser
was filed by Mahila Vidyalaya on 22nd September, 1948 and
the symbolic possession was also delivered on 24th March,
1951. As Mahila Vidyalaya was in need of more building, it
moved the Rent Controller for permission to serve notices on
the tenants. The said permission was granted on 10th March,
1953 and all the tenants except Mst. Radha Bai who was the
widowed sister of Govind Rao Harshe, handed over the
possession to Mahila Vidyalaya. The Mahila Vidyalaya
thereafter instituted Civil Suit No. 100-A of 1954 against
Mst. Radha Bai and Govind Harshe for ejectment and rent.
The Trial Court dismissed the suit for ejectment but passed
a decree for arrears or rent against Mst. Radha Bai alone.
The appeal filed by the Mahila Vidyalaya was allowed by the
Additional District Judge, Sagar on 27th October, 1957 and
the prayer for ejectment was also allowed. Against this
decision, Govind Rao Harshe alone preferred a second appeal
in the High Court and the same was dismissed by order dated
29th April, 1960. In this litigation Govind Rao Harshe was
held to be a licensee of his sister Mst. Radha Bai.
The above narration of events which remain undisputed
go to show that the house in question was sold in the
execution of a final decree for sale and the bid was knocked
down in the name of Gopal Rao Mutatkar as back as 20th
August, 1942. The entire sale money was deposited and the
sale was confirmed under Order XXI Rule 92 C.P.C. by order
dated 10th April, 1943. It is no doubt correct that the
916
final bid in the sale was knocked down in the name of Gopal
Rao Mutatkar and the sale was also confirmed in his name but
the sale certificate was admittedly issued in the name of
the Mahila Vidyalaya. In this regard an application was
filed on behalf of Mahila Vidyalaya on 5th January, 1944 and
the executing court had passed an order on 26th February,
1944 that the sale certificate will issue in the name of
Mahila Vidyalaya. In the application filed by Mahila
Vidyalaya it was clearly stated that the house in question
was auctioned by the Court and was purchased by Gopal Rao
Mutatkar on 20th August, 1942 for Mahila Vidyalaya. This
stand taken by Mahila Vidyalaya was accepted and the
executing court passed a specific order on 26th February,
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1944 for issue of a sale certificate in the name of Mahila
Vidyalaya. The sale certificate was thereafter, actually
issued in the name of Mahila Vidyalaya on 8th April, 1944.
Steps for executing the decree and for obtaining actual
possession was also taken by the Mahila Vidyalaya. Govind
Rao Harshe was a party to the execution proceedings and till
the filing of the present suit on 26th November, 1960, no
objection was raised as regards the sale certificate being
wrongly issued in favour of Mahila Vidyalaya. Not only that
in a suit for declaration filed in 1948 by the four sons of
Govind Rao Harshe, Gopal Rao Mutatkar in his written
statement filed on 10th March, 1948 had taken a clear stand
that the house in question was actually purchased by Mahila
Vidyalaya and as such he was wrongly impleaded as defendant
in the suit. On such stand taken by Gopal Rao Mutatkar, the
plaintiffs had subsequently impleaded Mahila Vidyalaya as
the defendant. In this suit also no objection was raised on
behalf of the plaintiffs, who were sons of Govind Rao
Harshe, that no sale certificate could have been issued in
the name of Mahila Vidyalaya nor any title could have passed
to Mahila Vidyalaya and as such there was no question of
impleading Mahila Vidyalaya as defendant and the suit for
declaration should continue against Gopal Rao Mutatkar.
The High Court in the impugned order considered that as
Gopal Rao Mutatkar was the auction purchaser, no sale
certificate could be issued by the executing court in favour
of the appellant Mahila Vidyalaya. The High Court in
arriving at the aforesaid conclusion also took the view that
there was nothing on record to show that till the sale was
confirmed it was ever made known that Gopal Rao Mutatkar was
purchasing the property for and on behalf of the Mahila
Vidyalaya. The order dated 10th April, 1943 relating to
confirmation of sale was also made in the name of Gopal Rao
Mutatkar. The High Court further took the view that Gopal
Rao Mutatkar could only
917
transfer his proprietary rights by sale or a gift and the
same being not done, there was no transfer of the
proprietary rights in favour of the appellant Mahila
Vidyalaya. It was thus held that the Act of the executing
court was clearly without jurisdiction and the sale
certificate being void and inoperative conferred no right or
title on the appellant Mahila Vidyalaya over the suit
property. We do not subscribe to the above view taken by
the High Court in the facts and circumstances of the present
case. The sale certificate is issued under Order XXI Rule
94 C.P.C. The sale certificate is granted by specifying the
property sold and the name of the person who at the time of
sale is declared to be the purchaser. An application was
submitted on 5th January, 1944 on behalf of Mahila Vidyalaya
that it was the real purchaser and the bid in the auction
was made by Gopal Rao Mutatkar on its behalf as he was a
member of the institution. This application was accepted by
the executing court by a specific order dated 26th February,
1944 and it was directed that the sale certificate shall be
issued in favour of the applicant Mahila Vidyalaya. The
executing court had jurisdiction to allow or reject such
application and it cannot be said that the act of the
executing court was clearly without jurisdiction and the
sale certificate as well as the entire execution proceedings
were void and inoperative. In case Govind Rao Harshe had
any grievance he ought to have challenged the order dated
26th February, 1944 in the proper forum and had no right to
challenge the same after 16 years by filing the present suit
on 26th November, 1960. We are not going into the propriety
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of such order but the same cannot be said to be void on
account of being without jurisdiction as held by the High
Court.
The High Court while dealing with the question of
limitation held that the plaintiff in this case was not
required to file a suit for getting the sale set aside when
he is pleading that the sale itself is void. A void sale
could be ignored by a true owner and it did not affect his
title. The High Court in our view was totally wrong in
holding that it was a case of void sale. It may be noted
that Govind Rao Harshe had already taken steps for getting
the sale set aside by moving a petition under Order XXI Rule
90 C.P.C. and his sons had filed a suit for declaration but
all those proceedings finally terminated against them. Even
if for arguments sake the objection now raised in the
present suit is considered, it is only in respect of the
sale certificate being wrongly issued in favour of Mahila
Vidyalaya. So far as the sale in favour of Gopal Rao
Mutatkar is concerned, there is no illegality and the sale
was rightly confirmed in his favour under Order XXI Rule 92
C.P.C. by order dated 10th April, 1943. It may be noted
that once an order was made under Order XXI Rule 92
confirming the sale, the title of
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the auction purchaser related back to the date of sale as
provided under Section 65 C.P.C. The title in the property
thereafter vests in the auction purchaser and not in the
judgment debtor. The issue of sale certificate under Order
XXI Rule 94 C.P.C. in favour of the auction purchaser though
mandatory but the granting of certificate is a ministerial
act and not judicial. Thus looking into the matter from
this angle also it is clear that no right or title remained
with Govind Rao Harshe after confirmation of sale in favour
of Gopal Rao Mutatkar which related back to the date of sale
i.e. 20th August, 1942. Thus there is no question of
holding that it was a case of a void sale which could be
ignored by a true owner and it did not affect his title.
Govind Rao Harshe and as such the respondents who are his
legal representatives were not entitled to take the stand
that they were true owner as the sale itself was void and
they were not required to file a suit for getting the sale
set aside. With the risk of repetition it is held that it
was not a case of the sale being void and in any case so far
as issue of sale certificate in favour of Mahila Vidyalaya
is concerned, the same was determined by a judicial order
dated 26th February, 1944 and the executing court was
competent to pass such order cannot be held to be void on
the ground of being without jurisdiction as determined by
the High Court and it was necessary to challenge the said
order within limitation. Even if the residuary Article 120
of the Limitation Act, 1908 is applied, it should have been
challenged within 6 years and as such the present suit filed
on 26th November, 1960 was hopelessly barred by time.
The High Court was clearly in error in taking the view
that Govind Rao Harshe was the true owner and the appellant
Mahila Vidyalaya was a trespasser. Even if it may be
considered for a moment that sale certificate could not have
been issued in favour of the appellant Mahila Vidyalaya
still in the facts of this case it cannot be held that
Mahila Vidyalaya was a trespasser and G.R. Harshe was the
true owner at the time of filing of the present suit. The
sale of the property in question was perfectly valid and as
soon as the sale was confirmed in favour of Gopal Rao
Mutatkar under Order XXI Rule 92 C.P.C., Govind Rao Harshe
had no right or title in the property and Gopal Rao Mutatkar
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became the owner of the property. The admitted position
which is borne out from the records is that Gopal Rao
Mutatkar never claimed any right in the property nor took
proceedings for obtaining possession by executing the
decree. On the other hand, he took a clear stand in his
written statement filed on 10th March, 1948 that he had bit
in the auction on behalf of Mahila Vidyalaya and the sale
certificate was rightly issued in favour of the Mahila
Vidyalaya.
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The apart, after the issue of sale certificate in favour of
Mahila Vidyalaya it alone was entitled to obtain possession
under Order XXI 95 C.P.C. The appellant Mahila Vidyalaya had
filed execution application and possession was given to it
on 24th March, 1951. Not only that Mahila Vidyalaya got an
order for serving notice of ejectment on the tenants from
the Rent Controller and all the tenants except Mst. Radha
Bai surrendered possession in favour of Mahila Vidyalaya.
Not only that a suit for ejectment filed against Mst. Radha
Bai and Govind Rao Harshe was also decreed in favour of the
appellant Mahila Vidyalaya. In execution of the decree for
ejectment Mahila Vidyalaya was trying to obtain possession.
Thus by no stretch of imagination can it be said that Mahila
Vidyalaya was a trespasser in the facts and circumstances
mentioned above. Th High Court in our view did not consider
the case in a proper perspective and took a wholly erroneous
view in holding that the appellant was a trespasser and
Govind Rao Harshe could have filed a suit for possession.
The plaintiff Govind Rao Harhse himself had come forward
with a plea that the execution proceedings and sale was null
and void and unless he was able to succeed in this regard,
which he did not in the present case, no decree for
possession could at all have been passed in his favour.
Thus, we allow the appeal, set aside the judgment and
decree of the High Court dated 12th December, 1974 and
dismiss the suit with costs.
Y. Lal Appeal allowed.
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