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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 - 525 525 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- 526 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 527 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 528 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. 531