TARINIKAMAL PANDIT AND ORS. versus PERFULLA KUMAR CHATTERJEE (DEAD) BY L.RS.

Citation: [1979] 3 S.C.R. 340 · Decided: 21-02-1979 · Supreme Court of India · Bench: V.R. KRISHNA IYER · Disposal: Appeal(s) allowed

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Judgment (excerpt)

340 
A 
TARINIKAMAL PANDIT AND ORS. 
v. 
PERFULLA KUMAR CHATTERJEE (DEAD) BY L.RS. 
February 21, 1979 
I 
[V. R. KRISHNA IYER, P. S. KAILASAM AND A. D. KosHAL, JJ.] 
Plea, which is a pure question of lalv taken for the first time 
may 
be 
permitted to be raised even at the last tier of appellate stage fn the Sr1preme 
Court. 
Suit against purchaser, non-n1aintainability on ground of purchase being 
C 
on behalf of plaintiff-Whether applies to an auction sale 
by 
a Receiver 
appointed under Order 40 Rule 1 of the Civil Procedure Code--Scope of sec-
tion 66 of the C.P.C. read wlih Order XX/ Rule 82 and Order XL Rule I. 
"Purchase certified by the Court" in Section 66 refers only to 1he 
ci~rti­
ficate issued by the Court to the Purchaser under Order XXl Rule 94 C.P.C~. 
D 
The plaintiffs-appellants filed a suit 
against 
the 
defendants-respondents 
claiming their title on an unregistered document to the suit 
property and 
premises purchased by the latter through a sale by the Receiver under the 
orders of the Court, on the ground that they were co-owners thereof by virtue 
of the said document. 
The trial conrt decreed the suit but th;?J High Court, 
on appeal, accepted the appeal and dismissed the suit. 
E 
Allowing the appeal by certificate, the Court 
F 
G 
HELD : 1. A pure question of la"'' on the facts and circumstances of a 
case can be taken for the first time in the Supreme Court. [351 B-C] 
(a) In the instant case, the plea that "as the title has vested in the respon· 
dent by virtue of the confirmation of sale and the registered conveyance, the 
plaintiffs-appellants cannot rely on an unregistered document" is a pure qucs· 
tion of law not involving any investigation of the facts. 
[35IC-E] 
Yaswant Deorao Deshmukh v. Walchand Ramchand Kothari, [1950] S.C.R. 
852 @ 861; Raia Sri Sailendra Narayan Bhanja Rao v. State of Orissa [1956J 
S.C.R. 72; Seth Badri Prasad and Ors. v. Seth Nagarmal and Ors., 
[1959] 
Suppl. I S.C.R. 769 @ 773; State of U.P. and Anr. v. Anand Swarup, (1974] 
2 S.C.R. 188; T. A. Appanda Mudaliar v. State of Madras, A.I.R. 1976 S.C. 
2459; applied. 
2. In a suit against the purchaser on the ground that the purchase was 
made on behalf of plaintiff or on behalf of some 
one through 
whom the 
plaintiff c1aims, the plaintiff cannot succeed in displacing the title 
of the -
defendant on the basis of the unregistered agreement. [352 C] 
ff 
On the pleadings, in the instant case, the question of law raised cannot 
result in the suit being dismissed as 
not maintainable. The claim of the 
appellant as a real owner was not based on the unregistered agreement alone. 
• 
• 
TAiUN!KAMAL V. P. K. CHATTERJEE 
.341 
The suit was basied on the plea that the suit property and the premises werA 
A 
purchased in ownership (i.e.) on the claim that the appellants-plaintiffs were 
the real owners of the property. [352 C-D] 
G. H. C. Arifi v. Jadunath Mazumdar Bo.hadur, 
Aferitin1e Electric Co. Ltd. v. General Dairies Ltd., 
ferred to. 
A.LR. 
1931 
P.C. 79, 
A.LR. 1937 PC 114; re-
3. Section 66 of the Civil Procedure Code prohibits any person claiming 
that a purchase certified by the Court in such manner as may be prescribed iu, 
favour of a person was made on behalf of the plaintiff. In order to invoke the 
prohibition it is necessary to establish that the person against whom the suit 
cannot be maintained is a person claiming title under a purchase certified by 
the Court in such manner as may be prescrjbed. A certificate by the Court 
for the purchase in the manner prescribed is. therefore. C'sscntial. [353 B-C] 
The word "prescribed" is defined under section 2(16) of the Civil Proce-
dure Code, as meaning prescribed by Rules. The provision as to grant of a 
certificate by a court under a purchase is prescribed in Order 21. Order 21, 
Rules 64 to 73 prescribe the procedure relating to sale generally while Rules 
82 to 103 prescribe the procedHre relating to sale of immovable property. 
When the Court makes an order confirming the aale under Order 21, Rule 92, 
the sale becomes "'bgolute. 
After the sale becomes absolute under 
Rule 94 
the Court shall grant a certificate specifying the properties sold and the name 
of the person who at the time of the sale i! declared to be the 
purchaser. 
Such certificate is required to bear the day and the date on which the sale 
became absolute. (353 C-E] 
The certificates by the Court referred to in Section 66 C.P.C. is a certificate 
under Order 21, Rule 94. The

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