Sale in execution f award for default.

The plaintiff is the petitioner. In 1928 he executed a mortgage over some of his properties in favour of the North Vellore Thottapalayam Town Co-operative Bank, for a sum of Rs. 300. The amount was repayable in instalments. A clause in the deed of mortgage entitled the bank in case of default by the plaintiff to take possession of the hypotheca and appropriate the income towards the debt due to it. The plaintiff fell into arrears and the Deputy Registrar of Co-operative Societies passed what is called an award but which is really in the nature of a decree. In execution of this award the hypotheca was sold on 23rd February, 1935, and purchased by the second defendant for Rs. 610. The sale was confirmed on 14th April, 1935, and the sale certificate was issued in due course. According to the plaintiff, the secretary of the first defendant bank is a relation of his. The second defendant who purchased the property at the auction sale is also another relation of his. The plaintiff alleged that there was an understanding between him and the president of the first defendant bank and the second defendant

“that the suit property might be purchased by the second defendant, that on his being recouped from the income or cash payment a reconveyance could be obtained from him. It was because of this specific arrangement that properties worth over Rs. 5,000 were, allowed to be sold for Rs. 610 only.”

The plaintiff would have it that the defendants refused to abide by this agreement and he therefore sued (a) for a declaration that the sale by the Cooperative Society was opposed to law, not in accordance with the terms of the award or decree, and that it could not pass “absolute title” and was null and void; or that in any event the second defendant could get only a right to be in possession till satisfaction of the debt covered by the mortgage; (b) for a direction to the second defendant to render an account of the income from the suit properties from about 1st July, 1935, till delivery of possession after adjusting it towards the balance due on the mortgage; and (c) for possession of the properties.

In view of the admission that the property was worth over Rs. 5,000 the issues were raised whether the Court of the District Munsiff in which the plaint had been presented had jurisdiction to try the suit and whether the court-fee paid was correct.

Section 7, clause (iv-A) Court-Fees Act, provides that in a suit for cancellation of “a.....document, securing money or other property having such value,” court-fees shall be paid according to “the value of the subject-matter of the suit.” Decisions of this Court have made it clear that “value” here means “market value”. The learned District Munsiff took the view that the sale certificate which had been issued in favour of the second defendant was a document of title and therefore a document securing property having money value, that the plaintiff could not get the reliefs he had asked for without removing the impediment created by the sale deed, that in substance the suit was one for cancellation of that instrument and that the plaintiff should pay court-fee on the market value. He also held that the suit was beyond his pecuniary jurisdiction and so returned the plaint for being presented to the proper Court. An appeal was taken to the District Judge of Vellore who dismissed it. The petitioner has now come to this Court.

The view of the Courts below that a sale certificate is a document of title and therefore comes within the scope of section 7, clause (iv-A) of the Act is clearly erroneous. As far back as the case in Mst. Buhuns Kowur v. Lalla Buhooree Lall1 it has been laid down that

“a sale certificate does no more than create statutory evidence of the transfer in place of the old mode of transfer by bill of sale.”

See also Tribeni Prasad Singh v. Ramasray Prasad Chowdhuri2, where this position has been re-stated:

“A purchaser of immoveable property at an auction sale can establish his title by ev