' RANA BHAGWAN DAS, J.---In Civil Miscellaneous Application No,3972 of 1997 by the auction purchaser for a direction to the Assistant Commissioner Karachi South to mutate the Property bearing No,RC-10/21/1/2 Ranchore Quarters in his name, question with regard to payment of stamp duty for such mutation was raised by one of us namely Mushtaq Ahmad Memon, J. Which is reflected in paragraph 5 of the order, dated 9-9-1997 as under: "5. In view of the position as has been pointed out by the learned counsel, I had entertained some doubts with regard to correctness of the view expressed in the reported judgments cited by the learned counsel for the applicant. Both the learned counsel, at this stage, jointly suggest that the question about payment of stamp duty on Certificate of Sale is of general importance and requires to be resolved authoritatively once for all. In the circumstances, the matter may be placed by the office before My Lord the Chief Justice to consider formation of larger Bench for deciding the question if Certificate of Sale granted under Order 21, Rule 94, C.P.C. Is chargeable with stamp duty in terms of Article 18 of Schedule-I of the Stamp Act, 1899?"
2. On a reference by office, Honourable Chief Justice constituted a Division Bench for decision of the question involved in this reference.
3. Applicant auction purchaser purchased the subject property in Execution Application No,51 of 1988 for a sum of Rs,1.9 million. Sale certificate was issued by the Official Assignee in favour of the auction purchaser. A copy of the certificate of sale was forwarded to the Registrar in terms of section 89(2) of the Registration Act, 1908 and an endorsement to that effect was made by the concerned Sub-Registrar. Subsequently auction purchaser moved an application to the City Survey Officer Karachi-South for mutation of the record of rights in his name but as the sale certificate did not bear requisite stamp, the City Survey Officer/Assistant Commissioner Karachi- South referred the matter of the Advocate-General Sindh for the opinion who is in his reply opined that the certificate of sale was required to be stamped under Article 18 of Schedule-I of the Stamp Act, 1899. Auction purchaser being dissatisfied with the legal opinion addressed a letter to the Additional Advocate-General Sindh inviting his attention to the principle laid down in M/s. Textile Winding Machinery Company v. Akbar Cotton Mills Ltd. (1995 CLC 1922) taking the view that the provisions of sections 17(2), 50(2), and 89(2) of the Registration Act being applicable to a certificate of sale granted under Order XXI, Rule 94, C.P.C., it would be exempt from registration and levy of stamp duty. Learned Additional Advocate-General through his letter reiterated the opinion already given and expressed the view that the above authority supported his version. It was in the wake of this chequered history that Assistant Commissioner Karachi-South through his memo., dated 10-5- 1997 informed the applicant's counsel that mutation in the record of rights could not be effected util proper stamp duty was paid on the certificate of sale.
4. After hearing learned counsel for auction purchaser and Mr. Iqbal Qadri, Assistant Advocate- General Sindh, Mr. Mushtaq Ahmed Memon, J. Expressed the view that the certificate of sale granted by this Court under Order XXI, Rule 94, C.P.C. Is chargeable with stamp duty but in view of the above-referred judgment by another learned Single Judge of this Court the case was placed before Honourable Chief Justice for constitution of a larger Bench as the question involved was of vital public importance.
5. At the hearing, Mr. Abdul Latif A. Shakoor, Advocate appeared on behalf of the auction purchaser, Mr. Muhammad Saleem Assistant Advocate-General represented the Advocate-General Sindh while Mr. Iqbal Qazi, Advocate appeared as amicus curiae on Court notice.
6. Documents of which registration is compulsory under the Registration Act are enumerated in section 17. Subsection (2) of this section excludes various documents from the purview of compulsory registration including any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue Officer. Likewise section 89(2) of the Registration Act provides that: "89(2) Every Court granting a certificate of sale of immovable property under the Code of Civil Procedure, 1908, (V of 1908) shall send a copy of such certificate to the registering officer within the local limits of whose jurisdiction the whole or any part of the immovable property comprised in such certificate is situate, and such officer shall file the copy of his Book No, 1."
7. Apart from the above provision section 50(2) of the Registration Act provides that the documents mentioned in subsection (2) of section 17 would not be affected by the provisions contained in subsection (1) of this section laying down that certain documents relating to land shall take effect against unregistered documents. It was in the light of these provisions and without reference to the provisions of sections 3 and 17 of the Stamp Act, 1899 and with Article 18 of Schedule-I to the Stamp Act that the aforesaid view was taken in the reported case. In fact the provisions contained in the Stamp Act were neither considered nor brought to the notice of the learned Single Judge when this question was agitated before the Court which rendered it necessary to form a larger Bench for reconsideration of the question as essentially it relates to recovery of public revenue and is likely to affect a large number of properties disposed of through Court sale in execution of decrees and summary proceedings under the Industrial Development Bank of Pakistan Ordinance.
8. In terms of section 65, C.P.C. Where immovable property is sold in execution of a decree and such sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when the property is sold and not from the time when the sale becomes absolute.
There is no gain saying that certificate of sale is not a document of title itself but it is certainly strong evidence tending to reflect the sale of property in favour of the purchaser. It is for this reason that the Court was persuaded in the earlier reported case that sale certificate was governed by the definition of public auction and would not require any stamp duty on registration because only a copy of sale certificate is to be sent to Registrar who shall make an endorsement thereon.
9. Under section 3 of the Stamp Act every instrument mentioned in the Schedule-I to the Stamp Act is chargeable with duty of the amount indicated in the schedule. Article 18 of Schedule-I provides for the duty payable on a certificate of sale with the amount as equivalent to the duty payable on a conveyance deed.
' Section 17 of the Registration Act provides that all instruments chargeable with duty and executed by any person in Pakistan shall be stamped before or at the time of execution. It would, therefore, imply that every instrument chargeable with duty and executed by any person in Pakistan must be stamped either before or at the time of execution and perhaps no exception can be taken to this express and specific mandate of law. Truly, speaking, Stamp Act being in the nature of fiscal statute must be construed strictly. Word "any person" would include a Court and more particularly Nazir or Official Assignee who acts on behalf of Court while issuing sale certificate. This provision of law appears to be comprehensive in nature which does not admit of any ambiguity even with regard to an instrument executed out of Pakistan which may be stamped when it is brought into Pakistan.
10. Word 'conveyance' is defined in section 2(10) of the Stamp Act and includes a conveyance on sale and ever instrument by which property, whether movable or immovable is transferred inter vivos and which is not otherwise specifically provided for by Schedule-I. Word "instrument" on the other hand is defined in section 2(14) of the Stamp Act and includes every documents by which any right or liability is, or purports to be, created, transferred, limited, extended, extinguished or recorded. It may be pertinent to observe that in the strict sense, sale certificate granted to the purchaser of any property by a Civil or Revenue Court or Collector or other Revenue Officer may not technically speaking be a conveyance but it certainly is an instrument evidencing the transfer of a right to property which is to be recorded in the Registers maintained by the registrar of the Properties under the Registration Act. If that be so under the provisions of sections 3 and 17 of the Registration Act read with Article 18 of Schedule-I to the Stamp Act such instrument would undoubtedly be chargeable to duty and irrespective of the circumstance that no conveyance deed as such is executed in favour of the purchaser, the fact of the matter remains that by reason of acquisition of a proprietary right in immovable property, the purchaser is liable to pay stamp duty thereon. For this reason alone in terms of section 29 of the Stamp Act it is incumbent upon the purchaser of a property to pay stamp duty on the instrument tending to reflect the transfer of interest in property in his favour.
11. In Collector of Ahmed Nagar v. Ram Bhau (AIR 1930 Bombay 392) a Full Bench of the Bombay High Court expressed the view where a sale certificate issued to the purchaser bears only four anna stamp whereas it should have an eight anna one, the Court can give another certificate to the purchaser on the proper stamp, without prejudice to any question of penalty on the first certificate, or the purchaser himself may apply under section 41 to the Collector asking for the mistake to he rectified. Earlier view taken in 9 Bombay Indian Law Reports 526 holding the view that a Court having once granted a certificate of sale to an auction purchaser is under no obligation to give him another, in order that he may escape the penalty which he has incurred by reason of the certificate being insufficiently stamped was in fact reconsidered and reviewed in the above case.
12. On behalf of auction purchaser support was sought from the view expressed by learned Single Judge of the Lahore High Court in Mall Developers (Pvt.) Ltd. v. Joint Official Liquidators (PLD 1993 Lahore 688) expressing the view that sale certificate issued by Court to an auction purchaser was not a title deed but only evidence of title which, thus, would not require to be stamped or registered. We are not inclined to agree with the view expressed by the Lahore High Court for the reasons firstly that the provisions of the Stamp Act and the Registration Act were not taken into consideration in the- said case and secondly the judgment proceeded only upon interpretation of Order XXI, Rule 94, C.P.C. At any rate we are not bound by a Single Bench judgment of the Lahore High Court more particularly when we are taking a different view from the view taken by learned Single Judge of this Court.
13. Even the view held by learned Single Judge in the Lahore case stands recalled and superseded in the recent case reported as Mehran Fabric (Pvt.) Ltd. v. Allied Bank of Pakistan (PLD 4997 Lahore 654) in which a Division Bench of Lahore High Court consisting of Munir A. Shaikh, J. (as his Lordships then was) and Sharif Hussain Bokhari, J. After review of Order XXI, Rules 94 to 96, C.P.C.
And Article 18 of First Schedule to Stamp Act, 1899 held the view that the sale certificate issued by the Court under Order XXI, Rules 94 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 right of receiving income of the property from the date of confirmation of the sale and as such contention that the sale certificate is not a document conferring title or transferring the property itself to the purchaser has no merits. Division Bench went on observing that High Court under Order XXI, 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 High Court would enforce the law and cannot allow any person to evade payment of the stamp duty. It goes without saying that the view is certainly and entirely in line with the view taken in the above reference by this Court and we hold accordingly.
14. For the aforesaid facts and reasons, Civil Miscellaneous Application No, 3972 of 1997 moved by the auction purchaser is dismissed and the above accordingly. We record our deep appreciation for the valuable assistance rendered by Mr. Iqbal Kazi Advocate.