' MUNIR A. SHEIKH, J.--By this consolidated judgment we propose to decide F.A.Os. Nos.109/92 and 77/92 also as questions of law and facts requiring decision in all these appeals are identical.
2. This appeal is directed against the order dated 28-2-1994 passed by the learned Single Judge through which it has been held that auction-purchaser was liable to pay stamp duty on the sale certificate in accordance with Article 18 of the First Schedule to the Stamp Act, 1899 and on the proper stamps having been supplied the certificate of sale would be issued to the appellant.
3. The facts of the case in brief are that in execution of money decree the properties in dispute were put to auction for its satisfaction which have been purchased by the appellants. After confirmation of the sale by an order passed by the executing Court as a consequence of which the said sale became absolute a sale certificate in favour of the purchaser under Order 21, Rule 94 is required to be issued. The appellant's case was that the said sale certificate does not require payment of stamp duty whereas the learned Single Judge after examining the relevant law in particular Article 18 of the Stamp Act, 1899 held that the stamp of the requisite value as prescribed under the said Article' has to be supplied without which no sale certificate could be issued. As which issuance of the sale certificate in favour of the appellants has been declined unless stamp duty of the requisite value had been paid through the impugned order dated 28-2-1994.
4. The question which requires determination in these appeals is whether a sale certificate issued by the Court in respect of a sale made in execution of decree on its having become absolute is liable to be stamped under the Stamp Act, 1899 and if so whether the issuance of sale certificate without payment of stamp duty of the requisite amount could be declined or payment of the same postponed till the said certificate is either produced before the Sub-Registrar for registration or the same was produced before any Court or authority empowered to receive the same in evidence and sought to be admitted in evidence or acted upon as provided in section 36 of the Stamp Act, 1899 for, learned counsel for the appellants on the strength of judgments from Indian jurisdiction in particular judgment reported as Smt. Shanti Devi L. Singh v. Tax Recovery Officer and others (AIR 1991 SC 1880) argued that payment of stamp duty should not be insisted on at the time of execution of document of title.
5. Learned counsel for the appellant submitted that according to the provisions of Civil Procedure Code, 1877 the title in the property was to vest in the purchaser after the sale certificate was issued, therefore, the sale certificate issued under the said Act was a document creating title in the property in favour of the purchaser, as such, in the Stamp Act, 1899 it was provided that stamp duty on it was payable in the same manner as was payable on conveyance-deed under the said Act.
According to learned counsel the provisions of Civil Procedure Code of 1908 brought a material change under which the title in the property stands transferred in favour of the purchaser on the passing of order by the Court for confirmation of sale and a sale certificate was merely a formality as such, is not a document itself creating title in favour of the purchaser in the property, as such, Article 18 of the Stamp Act should be interpreted in the light thereof, for, it appears that the law- makers did not suitably amend the Stamp Act in consequence of this change in the provisions of Civil Procedure Code which should be given effect to by this Court.
6. In order to appreciate the contention it is necessary to examine the relevant provisions of Civil Procedure Code, 1877 in comparison with the provisions of Civil Procedure Code, 1908.
7. Sections 312, 314 and 316 of Civil Procedure Code, 1877 as regards confirmation of sale made in execution of decree of immovable property, the legal consequence flowing therefrom as to transfer of title in the property and the legal efficacy of the sale certificate issued in pursuance thereof are relevant which are reproduced below in extenso for facility of ready reference and comparison with the corresponding provisions of Civil Procedure Code, 1908.
' Sections 312, 314 and 316 of Civil Procedure Code, 1877 were as follows:--
312. If no such application as is mentioned in the last preceding section be made, or if such application be made and the objection be disallowed, the Court shall pass an order (m) confirming the sale as regards the parties to the suit and the purchaser. If such application be made, and if the objection be allowed, the Court shall pass an order setting aside the sale. No suit to set aside on the ground of such irregularity and order passed under this section shall be brought by the party against whom such order has been made.
314. No sale of immovable property shall become absolute until it has been confirmed (o) by the Court.
316. When a sale of immovable property has become absolute in the manner aforesaid, the Court shall grant a certificate (r) stating the name of the person who, at the time of sale is declared to be the purchaser and the date of such sale.
8. The comparable provisions of Civil Procedure Code, 1908 are Order 21 Rules 92 and 94 which are reproduced below as follows:--
92. Sale when to become absolute or be set aside.---(1) Where no application is made under rule 89, vile 90 or rule 91, or where such application is made and disallowed, the Court shall make an order confirming the sale, and thereupon the sale shall become absolute.
(2) Where such application is made and allowed and where, in the case of an application under rule 89, the deposit required by that rule is made within thirty days from the date of sale, the Court shall make an order setting aside the sale: ' Provided that no order shall be made unless notice of the application has been given to all persons affected thereby.
(3) No suit to set aside an order made under this rule shall be brought by any person against whom such order is made.
94. Certificate to purchaser.---Where a sale of immovable property has become absolute, the Court shall grant a certificate specifying the property sold and the name of the person who at the time of sale is declared to be the purchaser. Such certificate shall bear date the day on which the sale became absolute.
9. When the provisions of Civil Procedure Code, 1877 and 1908 mentioned above are compared with each other, we find that there is no material difference between the two, as regards confirmation of sale, the same becoming absolute and the issuance of sale certificate and the necessary legal consequential rights and liabilities created there under. Reading these provisions of both the Civil Procedure Codes together leads one to conclude that once the sale of immovable property made in execution of decree, is confirmed by the Court, the same becomes absolute by operation of law.
The expression "absolute" has been used in these provisions of law primarily for giving finality to the proceedings leading to the sale and the sale itself so far as the Executing Court confirming the same is concerned so that no further objection against the same to challenge its legality can be entertained by the said Court. It does not as argued by learned counsel for the appellant, has the effect of transferring the property itself to the purchaser by operation of law as there is nothing in these provisions of the Civil Procedure Codes, that on the sale becoming absolute the property would stand automatically transferred conveyed to the purchaser and he becomes owner of the same and could deal with the same as such in any manner as an owner could do such as take possession of the same and further transfer it and recover the rent etc. Before the issuance of sale certificate as envisaged by Rule 94 of Order 21, C.P.C. This view finds support from the provisions of rules 95 and 96 of Order 21 of the Civil Procedure Code which provide that after the issuance of sale certificate the purchaser could be delivered actual physical possession of the property if it was in possession of judgment-debtor and constructive possession if the same was in occupation of a tenant which clearly means that it is on the issuance of sale certificate that the transfer of property in favour of the purchaser takes place and the purchaser in that case could claim benefits of recovery of the rent etc. Of the property from the date of confirmation of the sale.
10. For the foregoing reasons it therefore can safely be held that the sale certificate issued by the Court under Order 21, Rule 94, C.P.C, is a document which has the effect of transferring and creating title in the property without which the purchaser does not become the owner though after issuance of the same he could claim rights of receiving income of the property from the date of confirmation of the sale as such the argument of learned counsel for the appellant that the sale certificate is not a document conferring title or transferring the property itself to the purchaser has no merits.
11. Even if the argument of learned counsel for the appellant that the sale certificate itself is not a document of title is accepted, the same would not advance his case, for, so long as Article 18 of the Stamp Act, 1899 is part of the Statute, the sale certificate is required to be stamped thereunder and it is immaterial whether such a document has the effect of transferring the property or not.
12. The submissions of learned counsel for the appellant based on judgments from Indian jurisdiction that the question as to payment of stamp duty on the sale certificate should be left to be decided at the stage when the same is produced before any authority or Court as evidence and sought to be admitted in evidence and acted upon or produced for registration of the same before the Sub-Registrar as provided in the Stamp Act have no merits, as the law has left no ambiguity in this respect.
13. The different provisions of the Stamp Act to which reference has been made have been enacted to achieve the object of preventing the evasion of payment of the stamp duty prescribed thereunder. This Court under Order 21, Rule 94, C.P.C. Is under statutory obligation to issue a sale certificate and if the law clearly provides that in respect thereof stamp duty is to be paid at prescribed rates, this Court would enforce the law and cannot allow any person to evade payment of the stamp duty. The order passed by the learned Single Judge, therefore, is in accordance with law and does not suffer from any legal infirmity as such calls for no interference.
14. For the foregoing reasons these appeals have no merit which are accordingly dismissed with no order as to costs.