Adhur Chunder Banerjee vs Aghore Nath Aroo

Maclean, C.J.—In September 1896, the Plaintiff bought, at an auction-sale, certain property upon which were standing certain trees. I assume, as has been assumed throughout this case by both sides, that the trees belonged to the judgment-debtor, otherwise it is difficult to see how the present question could arise. The trees were on the ground at the time of the sale, and are to be treated as included in the sale. The case has been argued on this footing, On the 16th January 1897, a certificate was granted to the Plaintiff under sec. 316 of the Code of Civil Procedure. In the interval between the date of the sale and of the certificate, Defendant No. 1 cut down the trees, and the Plaintiff row sues him for damages in respect of that action on his part. Defendant No. 1 set up in the Court below, that he had purchased the trees, from the judgment-debtor between the date of the sale to the Plaintiff and the date of the certificate, but it was found, as a matter of fact, by that Court, that no such sale had been effected. This contention then of Defendant No. 1 failed. But this does not dispose of the case, because Defendant No. 1 urges that whether he did or did not buy the trees, the trees did not belong to the Plaintiff and that he, any way, has no title to maintain the present suit. He puts his case this way : he says that, having regard to the language of sec. 316 of the Code, the Plaintiff did not acquire a title to the property sold under the auction-bale, until the certificate was granted, and that being so, that he had no title in the trees at the time when the Defendant cut and took them away. In other words he contends that the Plaintiff had no title, or even interest, in the property sold, until the certificate was granted. 1 am unable to assent to this view as, from the date of the sale, the Plaintiff had, in my opinion, a good equitable or inchoate title to the property sold, and when the certificate was actually granted, it made the title absolute, and made that title relate back to the date of the sale. Otherwise, somewhat startling consequences would ensue. If the contention of the present Petitioner be well founded the title to the property must either remain in the judgment debtor or remain in a state of suspense between the date of the sale and the date of the certificate, which, if there were intermediate litigation, might be for a lengthened period. If the property remained in the judgment-debtor, he could deal with it, or it might, again, be sold at the suit of some other judgment-creditor, and it is not difficult to foresee various complications which might arise from such a condition of affairs. It can hardly be supposed that the Legislature intended that the title should remain in suspense; if so, the only alternative is that it remained, unless it passed to the purchaser, in the judgment-debtor, which appears to me quite inconsistent with the idea of a sale. Unless there be any legislative enactment which drives me to the conclusion that, notwithstanding the sale, the title to the property sold still remained in the judgment-debtor, I am not prepared to assent to such a view. Are we bound by any such enactment ? I think not. Great reliance is placed by the Petitioner on the following words in sec. 316:--"Such certificate shall bear the date of the confirmation of the sale and, 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." But the provision is not general : it only applies "so far as regards the parties to the suit and persons claiming through or under them" and does not apply to third parties, such as is the present purchaser.

The learned vakil for the Petitioner admitted that an auction-purchaser is not a person claiming through or under the judgment-debtor. If the Legislature had intended that the title to the property sold was not in any event to vest in the purchaser until after the date of the certificate, it is difficult to see why, first, it did not say so, and secondly, why the qualifying words " so far as regards the parties to the suit and persons claiming through or under them," were inserted. The insertion of these words indicates that the provision was not intended to apply generally, but only as regards the parties and persons mentioned in the section. It would be an odd conclusion, if when at an auction-sale a person has purchased property with trees or buildings upon it, and the price has been fixed upon the footing of the purchaser getting the trees or buildings, the judgment-debtor can before the certificate, which is based on the confirmation by the Court of the sale, sell those trees or buildings to a third party, on the footing that the original purchaser gets no title to them until the certificate is granted, I can see nothing in sec. 316 to warrant such a conclusion. In my opinion the auction-purchaser had a good equitable title to the property including the trees, as from the date of the sale, a title sufficient to warrant him in bringing an action for damages for any injury done to that property, when the sale had been confirmed, as it was, by the Court, and a certificate granted under sec 316 of the Code. This view is consistent with the principle of the decision in the case of Dagdu v. Pancham Sing Gangaram (1), and also with that of the case of Prangour Mozoomdar v. Himanta Kumari Debya (2), decided in this Court. The judgment of the Court below was right, and this rule must he discharged with costs two gold mohurs.

Macpherson, J.

I agree.