1

Supreme Court of India

P. Udayani Devi vs V.V. Rajeshwara Prasad Rao & Anr on 24
February, 1995
Equivalent citations: 1995 AIR 1357, 1995 SCC (3) 252
Author: S Agrawal
Bench: Agrawal, S.C. (J)
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 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 execution 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
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entitled 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 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 :

"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
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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 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.

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.