JUDGMENT

SHARMA, J.:— Special leave is granted. The short question which arises in this appeal is whether duty is payable under S. 147 of the Delhi Municipal Corporation Act, 1957, on a sale certificate issued by the Civil Court under order XXI, Rule 94, Code of Civil Procedure.

2. The property in question was auction sold in execution of a decree in the civil Court and was purchased on August 4, 1986 by the respondent Pramod Kumar Gupta for a sum of Rs. 17,00,000/-. The sale was confirmed on November 6, 1986, and the High Court directed the issuing of the Sale Certificate under Order XXI, Rule 94, C.P.C. On the question of payment of Stamp Duty, the respondent contended that no duty was chargeable under S. 147 of the 1957 Act. The learned single Judge of the High Court agreed with. him and directed payment of only the Stamp duty without surcharge for issuance of the Sale Certificate. The judgment was confirmed on appeal by a Division Bench. The petitioner-appellant Municipal Corporation of Delhi has challenged the High Courts decision in the present appeal.

3. Under the provisions of S. 147 of the Act, duty is levied on transfers of immovable property. The relevant part of sub-section (2) is mentioned below:-

"(2) The said duty shall be levied-

(a) in the form of a surcharge on the duty imposed by the Indian Stamp Act, 1899, as in force for the time being in the Union territory of Delhi. on every instrument of the description specified below, and

(b) at such rate as may be determined by the Corporation not exceeding five per cent., on the amount specified below against such instruments.-

Description of instrument Amount on which duty should be levied

(i) Sale of immovable property. The amount or value of the consideration for the sale, as set forth in the instrument.

(ii) Exchange of immovable property. The value of the property of the greater value, as set forth in the instrument.

(iii) Gift of immovable property. The value of the property, as set forth in the instrument.

(iv) Mortgage with possession of immovable property. The amount secured by the mortgage, as set forth in the instrument.

(v) Lease in perpetuity of immovable property. The amount equal to one-sixth of the whole amount or value of the rent which would be paid or delivered in respect of the first fifty years of the lease as set forth in the instrument."

The duty is thus payable "on every instrument of sale of immovable property. The question is whether a Certificate issued by Civil Court under Rule 94 of Order XXI, C.P.C., is an instrument of sale.

4. The expression "instrument" in S. 147 of the Act has the same connotation as the word has under the Stamp Act, the reference to which has been expressly made. Cl. 14 of S. 2 of the Stamp Act gives an inclusive definition of the expression as referring to any document by which any right or liability is purported to be created, transferred, limited, extended, extinguished or recorded. Clause 10 of the said section states that "conveyance" includes a conveyance on sale and every instrument by which property, whether movable or immovable, is transferred inter vivos. The expression instrument of sale of immovable property under S. 147 of the Act must, therefore, mean a document effecting transfer. The title to the property in question has to be conveyed under the document. The document has to be a vehicle for the transfer of the right, title and interest. A document merely stating as a fact that transfer has already taken place cannot be included within this expression. A paper which is recording a fact or is attempting to furnish evidence of an already concluded transaction under which title has already passed cannot be treated to be such an instrument. The question, therefore, is as to whether a Certificate issued by a Court under Rule 94 of Order XXI can be said to be such an instrument so as to attract the provisions of S. 147 of the Act or not.

5. An examination of the relevant provisions of Order XXI of the Code of Civ