Supreme Court of India

SAGAR MAHAVIDYALAYA, SAGARversusPANDIT SADASHIV RAO HARSHE AND ORS.

Citation: 1991 INSC 149
Decided: 12 July 1991
Disposal: Appeal(s) allowed
Bench: S RANGANATHAN

Holding

An order confirming sale under Order XXI Rule 92 vests title in the auction purchaser under Section 65 CPC, and the issuance of a sale certificate under Rule 94 is a ministerial act; therefore the sale was valid and the executing court was competent to issue the certificate to Mahila Vidyalaya.

Summary

Govind Rao Harshe mortgaged his house and land, and a decree for sale was obtained by the mortgagees. The property was auctioned on 20 August 1942 and the bid was knocked down in favour of Gopal Rao Mutatkar, who was a member of Sagar Mahila Vidyalaya. The auction sale was confirmed on 10 April 1943 under Order XXI Rule 92 CPC. The Vidyalaya applied for, and the executing court issued, a sale certificate in its name on 8 April 1944, treating Mutatkar’s bid as made on its behalf. Subsequent suits and appeals questioned the validity of the sale certificate, the title of the auction purchaser, and the limitation of the later suit for possession. The High Court held the sale certificate void and the Vidyalaya a trespasser. The Supreme Court reversed, holding that once the sale is confirmed, title vests in the auction purchaser under Section 65 CPC, the issuance of a sale certificate under Rule 94 is a ministerial act, and the executing court had jurisdiction to issue it. The sale was valid, not void, and the appeal was allowed, setting aside the High Court judgment.

Issues considered

The effect of an order confirming sale under Order XXI Rule 92 CPC on title under Section 65 CPC.
Whether the issuance of a sale certificate under Order XXI Rule 94 CPC is a ministerial act and can be made in favour of an entity when the auction purchaser bid on its behalf.
The jurisdiction of the executing court to issue a sale certificate to the Mahila Vidyalaya.
Whether the suit for possession filed in 1960 was barred by limitation.
Whether the sale of the property was void.

Legislation cited

Code of Civil Procedure, 1908s. Order XXI Rule 90, s. Order XXI Rule 92, s. Order XXI Rule 94, s. Section 65
Limitation Act, 1908s. Article 120, s. Article 142, s. Article 143, s. Article 144
Relief of Indebtedness Act, 1939
Societies Registration Act, 1860

Subjects

sale of propertyauction purchasersale certificateministerial actexecution of decreeSection 65 CPCOrder XXImortgagepossessionlimitation

Judgment

SAGAR MAHAVIDYALAYA, SAGAR
A
v.
PANDIT SADASHIV RAO HARSHE AND ORS.

JULY 12, 1991

B [S. RANGANATHAN, N.M. KASLIWAL AND
S.C. AGRAWAL, JJ.]

Code of Civil Procedure, 1908-Section 65 and Order XX/-
Rules 92 and 94--Sale of property takes place when sale confirmed-
Issue of sale certificate a ministerial act and not judieial.
"
c 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
D mortgagor applied for relief under the C .P. and Berar Relief of Inde-
btedness 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
E before the Executing Court and the said Court held that the decree-
holders were entitled to execute the de.cree 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
F 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 stat-
G ing that the house in question was auctioned by the Court and was
purchased by Gopal Rao Mutatkar a member of the appellant-insti- l

tution, 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. The execut-
ing court on 26.2.1944, ordered that the sale certificate will issue in the
H name of Mahila Vidyalaya, Sagar, through Secretary, G.R. Wakhle and

906
SAGAR MAHAV!DYALAYA v. S.R. HARSHE 907

accordingly the sale certificate was issued in favour of the appellant on
A
8.4.1944. The four sons of the mortgagor filed a suit lmpleadlng 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 B
functionaries of the appellant and the suit should have been filed against
the appellant itself and not a.gains! 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 pur-
chaser 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 c
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 D
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 Jndge. The original mortgagor's appeal failed
before the High Conrt whereupon the appellant filed an execntion E
application for ejectment of the occnpants which is still pending as a
result of stay order passed in a subsequent snit filed by Govind Rao
Harshe, original mortgagor, against the appellant for a declaration,
possession and permanent injunction. This snit giving rise to the pre-
sent appeal was dismissed by the Trial Conrt. An appeal preferred
against that order by the legal representatives of the deceased-plaintiff, F
was allowed by the District Judge granting the declaration, delivery of
possession of the house together with a mandatory injnnction directing
demolition of some new constructions made by the appellant. The
appellant filed a second appeal before the HiJlh Court which was dismissed by
the impngned order. The appellant bas thns filed this appeal after
obtaining special leave. The High Court held that as Gopal Rao G
Mutatkar was the auction purchaser, no sale certificate contd be lssned
by the execnting conrt 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 the High Conrt 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- H
908 SUPREME COURT REPORTS [1991] 2 S.C.R.

A 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, confirm-
B ing 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 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]
c 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 bad no right or title in
the property and Gopal Rao Mutatkar became the owner of the
property. [918G]
D
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 posses-
sion. The plaintiff Govind Rao Harshe himself had come forward with
a plea that the execution proceedings and the sale was null and void
E 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]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 203
of 1975.
F
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, Rameshwar Nath, L.G. Kher and Ravinder Nath for
the Appellant.
G
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

H KASLIWAL, J. This appeal by special leave is directed against

1
SAGAR MAHAVIDYALAYA v. S.R. HARSHE [KASLIWAL, J.] 909

the judgment of the High Court of Madhya Pradesh at Jabalpur dated
A
12th December, 1974. This litigation has a Jong chequered history of
more than five decades. The appellant, the Sagar Mahila Vidyalaya is
y
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 B
and a house known as "Harshewada" to Lakshmi Chand and Duli
Chand Modi. The aforesaid mortgagees 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 cam~
into force. The judgment debtor Govind Harshe alongwith his minor
sons namely, Sadashiv Rao and Ram Chander Rao applied for settle-
ment 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 D
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 the Debt Relief Court. The revision filed by Lakshmi Chand.
and Duli Chand was registered as Civil Revision No. 119 of 1940 while E
that of another creditor Pandey Shankernath was registered as Civil
Revision No. 27 of 1941. The Additional District.Judge disposed of
\>6th the revisions by order dated 29th ~eptember, 1941. Ex. P-4 is the
copy of the order passed in Civil Revision No. 119 of 1940 and its
operative part reads as under:
f
"For the reasons given in paragraph 8 of the ord~r 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 instal-
ments shall cease to have effect and the whole claim shall
.. .1, become recoverable. I, therefore, order that the debtors
shall keep the mortgaged property intact by paying its land G
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,
aild _in_case they deliberately fail to keep the mortgaged H
910 SUPREME COURT REPORTS [1991] 2 S.C.R.

house in proper repairs or endanger its existence, this order
A
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 18th November, 1941 the decree holders Lakshmi Chand and
B 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 revisicinal c0t1rt 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 judg-
ment debtor Govind Rao Harshe did not appear before the executing
C court inspite of service of notice and allowed the execution case to
proceed ex parte ~gains! him. On 31st March, 1942 the executing court
passed an 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 detennined by the Debt Relief Court as due to
D them at gnce. It was further h.eld that the decree holders were entitled
to execute the decree for recovery of debt amount.

The judgment debtor Govind Rao Harshe submitted an applica-
tfbn on 12th August, 1942 for setting aside the ex parte order dated
31st March, 1942. This application was dismissed on 13th November,
E. 1942. Civil Appeal filed against the said order was also dismissed on
6th April, 1943 by the Additional District Judge. In. the meantim•!, 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. l/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
F September, 1942.

The Judgment debtor Govind Rao Submitted an application
unuer 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 ~
G 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 Apnl, 1943.
Sadashiv Rao anct Ram Chander Rao, sons of the judgment debtor
Govind Rao Hars~e who had become adult also moved the executing
Court on 28th September, 1943 that they were also necessary parties to
,H the execution case as they were also parties in the proceedings before
SAGAR MAHAVIDYALAYA v. S.R. HARSHE [KASLIWAL, J.) 911

the Debt Relief Court and as they were not made parties in the execut-
A
ing 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 dismis-
sed 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, B
1947. In the meantime on 5th January, 1944 an application was submit-
ted by Mahila Vidyalaya, Sagar (appellant before us) through its Secre-
tary, 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 C
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 sup-
plied with the application. A note was also appended with the applica-
tion as under:
D
"That when Gopal Rao son of Madho kao 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 institu-
tion 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".
F
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 G
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 forMahila Vidyalaya, Sagar
as defendant No. l(a), Shri G.R. Wakhle, Secretary, Mahila Vidya-
laya as defendant No. l(b), Lakshmi Chand and Duli Chand as
defendant Nos. 2 and 3 and Govind Rao Harshe (father of the H
912 SUPREME COURT REPORTS [1991] 2 S.C.R.

A plaintiffs) as <1efendant 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
B 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 institu-
tion and the suit should have been filed against the institution itself
and not iri the name of its office bearers. Shri G.R. Wakhle was the
c Secretary of the Sagar Mahila Vidyalaya, Sagar in 1942 and 1943. He
was no longer its secertary and the present Secretary of the said
insitituion was Mrs. 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
D Mahila Vidyalaya, Sagar as party. This suit filed by the afore-
mentioned 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
E 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 tile' occupation
F 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 occ.upation moved the Rent Controller for permission
G 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
H to live with his family in the portion occupied by Mst. Radha Bai as her
SAGAR MAHAVIDYALAYA v. S.R. HARSHE (K.ASLIWAL, J.I 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
.A
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_ appe_al 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 B
filed by Govind Rao Harshe. The Mahila Vidyalaya 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 C
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 D
pendency of the suit and all the respondents in the present appeal were
substituted in his place as his legal representatives. The suit was dis-
missed 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 posses-
sion of the house together with a mandatory injunction directing E
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 Bigh
Court. The High Court by order dated Uth December, 1974 dismissed.
the appeaL The defendant Mahila Vidyalaya in the above circums-
tances have come in appeal by the grant of special leave. ·p

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 thai the
bid in the auction was made by Gopal Rao for himself and not on
J behalf of Mahila Vidyalaya. The deposit of the auction. money was G
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 and the sale was confirmed in H
914 SUPREME COURT REPORTS [1991] 2 S.C.R.

A his name and he 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 circums-
tances, 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
B 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
c 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 aid not affect his title.
The High Court thus took the view that the suit for possession on the
D 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 heared learned counsel for the parties and have
thoroughly perused the records. In our view the High Court comp-
E letely misdirected itself and wrongly ignored the earlier decisions bet-
ween 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 mort-
gagees Lakshmi Chand and Duli Chand Modi. Gopal Rao Mutatkar
F 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 execut-
ing 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
G as parties also proved futile. It is an admitted position that an applica-
tion was submitted by the Mahila Vidyalaya through its Secretary as
early ?.s 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
H Vidyalaya. The necessary stamps for the sale certificate were supplied
SAGAR MAHAVIDYALAYA v. S.R. HARSHE (KASLJWAL, J.l 915

by the.Mahila Vidyalaya and the sale certificate was actually issued in
A
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 judg-
ment 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 B
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 sub-
sequently the plaintiffs impleaded the Mahila Vidyalaya in view of an
objection raised by Gopal Rao Mutatkar and G.R. Wakhle that the c
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 D
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, E
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
of rent against Mst. Radha Bai alone. The appeal filed by the Mahila
Vidyalaya was allowed by the Additional District Judge, Sagar on 27th F
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.
G
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 nc:i doubt correct that the H
916 SUPREME COURT REPORTS [1991T 2 S.C.R..

A 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
B 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, 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
c 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
D 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 the sale certificate was also issued in the name of Mahila
Vidyalaya and as such he was wrongly impleaded as defendant in the
E 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
F 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 M utatkar was the auction purchaser, no sale certificate could be
issued by the executing court in favour of the appellant Mahila
G 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
H Court further took the view that Gopal Rao Mutatkar could only
SAGAR MAHAVIDYALAYA v. S.R. HARSHE IKASLIWAL, J.l 917

transfer his proprietary rights by sale or a gift and the same being not
A
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 ce·rtificate
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 B
the present case. The sale cerificate is issued under Order XX! Rule 94
C.P.C. The sale cerificate 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 c
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 D
as well as the entire execution proceedings were void and inoperative.
In case Govind Rao Harshe had any grievance he ought to have chal-
lenged 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 of
such order but the same cannot be said to be void on accounf of being E
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 F
title. The High Court in our view was totally wrong in holding that it
was a case of void sale. It may be norea 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 bad 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 G
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 H
918 SUPREME COURT REPORTS [1991] 2 S.C.R.

A 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
B 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. Tlius
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 representa-
tives were not entitled to take the stand that they were true owner as
c 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
D 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
E barred by time.

The High Court was clearly in error-in taking the view that Gov-
ind Rao Harshe was the true owner and the appellant Mahila Vid-
yalaya was a tresppasser. Even if it may be considered for a moment
that sale certificate could not have been issued in favour of the appel-
F lant 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
G Rao Mutatkar became the owner of the property. The admitted posi-
tion 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
H sale certificate was rightly issued in favour of the Mahila Vidyalaya.
SAGAR MAHAVIDYALAYA v. S.R. HARSHE [KASL!WAL, J.] 919

That apart, after the issue of sale certificate in favour of Mahila Vid-
A
yalaya it alone was entitled to obtain possession under Order XXI 95
C.P .C. The appellant Mahila Vidyalaya had filed execution applica-
tion 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 B
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. The High Court in our view did not
consider the case in a proper perspective and took a wholly erroneous c
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 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 D
1 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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