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Chiddo vs Piari Lal And Anr.

High Court Of Judicature at Allahabad|18 December, 1896


1. This appeal arises out of a suit brought by the plaintiff for the redemption of a mortgage. The plaintiff succeeded in the Court of First Instance, but on appeal the learned Subordinate Judge reversed the decree of the Munsif and dismissed plaintiff's suit. The plaintiff comes here in second appeal. It appears that, on the 27th of July 1877, Hiraman and Jauhari, the plaintiff's predecessors in title, executed a simple mortgage of a shop in favour of one Baldeo Das, the representative in title of the defendants respondents. The plaintiff's allegation was that, although the mortgage was a simple one, the mortgagors and mortgagee entered into an oral agreement whereby the mortgagee was put into possession of the property for a term of seventeen years, and it was covenanted that after the expiry of the seventeen years the property was to be restored to the mortgagors and the mortgage-debt considered to be discharged. The plaintiff alleged that the defendants, when called upon to vacate the shop after the expiry of the seventeen years, refused to deliver up possession, and hence he was obliged to sue to recover possession. The Lower Appellate Court has found that the plaintiff has failed to prove the allegation upon which he came into Court, and has not succeeded in showing that defendants are in the possession in virtue of the mortgage. It appears that, after the mortgage above referred to, Mathura Das and Jamna Das obtained a simple money decree against the plaintiff in this suit, in execution of which the plaintiff's equity of redemption in respect the property in dispute was brought to sale, and purchased by one Mohan. It is found that the defendants respondents are the heirs of Mohan. Consequently, as they are also the representatives of the mortgagees, they have, if the sale to Mohan was a good one, become full owners of the property. The plaintiff contends that, notwithstanding that sale of the equity of redemption, he is nevertheless entitled to maintain the present suit, because Mohan, the auction purchaser, failed to obtain from the Court a certificate of sale. Reliance is placed upon Section 316 of the Code of Civil Procedure, which provides that, so far as regards the parties to the suit and persons claiming through or under them, the title to the property sold shall vest in the purchaser from the date of such certificate and not before." It must be allowed that these words, the interpretation of which has caused considerable difficulty to the Court, lend some colour to the appellant's contention, but I am of opinion that it cannot prevail. It is not denied that the sale to Mohan was confirmed by the Court. Section 314 of the Code provides that of sale of immovable property in execution of a decree shall become absolute until it is confirmed by a Court. Moreover, the date of the certificate referred to in Section 316 is not to be the date on which the certificate is drawn up, but the date upon which the sale is confirmed. It has further been held that, as it is the duty of the Court to grant a certificate, no limitation applies to an application for a sale certificate. It was held by the Privy Council that Section 259 of Act No. VIII of 1859, which corresponds to Section 316 of the present Code, did no more than create statutory evidence of the transfer in place of the old mode of transfer by a bill of sale. It is true that Section 259 differs somewhat from Section 316 of the present Code. By the former section the certificate, it is said, "shall be taken and deemed to be a valid transfer of the right, title and interest sold." But even under the present Act it has been held,--vide Dagdu v. Pancham Sing Gangaram I.L.R. 17 Bom. 375--that, although the auction purchaser may not obtain a full title until a certificate has been granted, this must not be considered as necessarily destroying any lesser interest which arises by reason of general equitable principles. This ruling was followed by this Court in Het Ram v. Baldeo Weekly notes 1894 p. 54. As the plaintiff's equity of redemption was sold and that sale was confirmed, I hold that the mere fact of the auction purchaser not having as yet obtained a sale certificate will not entitle the plaintiff to treat the sale as a nullity, and maintain the present suit. For the above reasons I dismiss this appeal with costs.
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Chiddo vs Piari Lal And Anr.


High Court Of Judicature at Allahabad

18 December, 1896
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