sale certificate of any property sold by a public auction by a civil or revenue officer does not require registration and for its registration requisite stamp duty cannot be insisted by the registrar

Even the aforesaid Section though mandatory in nature provides which of the documents are compulsorily to be registered, but it does not include sale by auction and sale certificate issued by the concerned authority including confirmation of the sale which are outcome of auction proceedings conducted in terms of the Court's order. The provision is speaking one and without any ambiguity, thus, registration was not required.[Para No.8]

     The issue raised in this petition is no longer res integra and is squarely covered by the judgment of the Hon'ble Supreme Court in Som Dev and others vs. Rati Ram and another (2006) 10 SCC 788 and thereafter in a subsequent judgment B. Arvind Kumar vs. Govt. of India and others (2007) 5 SCC 745 which judgments, in turn, have been considered by learned Division Bench of this Court in Valley Iron & Steel Company Ltd. vs. State of Himachal Pradesh and other (2016) 5 ILR 1639, and the relevant observations are as under:-

"24. Learned Senior Counsel appearing on behalf of the writ petitioner argued that the authorities concerned have refused to register the sale and make the entries in the revenue records on the ground that the necessary permission was to be obtained as per the mandate of Section 118 of the Act.

25. It is also contended that the sale certificate and the confirmation of sale issued by the authorities, i.e. Annexures P6 and P8, are necessary to be registered before the authority concerned in terms of the mandate of Section 17 of the Registration Act, 1908 (for short "the Registration Act"), which is not legally correct.

26. Section 17 of the Registration Act, though mandatory in nature, provides which of the documents are compulsory to be registered. It does not include sale by auction and sale certificate issued by the concerned authorities including confirmation of sale, which are outcome of the auction proceedings conducted in terms of Court orders.

The provision is speaking one and without any ambiguity. Thus, registration was not required. The Apex Court in the case titled as B. Arvind Kumar versus Govt. of India and others, 2007 5 SCC 745 , held that a sale certificate issued by a Court or an officer authorized by the Court does not require registration. It is apt to reproduce para 12 of the judgment herein:

"12. The plaintiff has produced the original registered sale certificate dated 29.8.1941 executed by the Official Receiver, Civil Station, Bangalore. The said deed certifies that Bhowrilal (father of plaintiff) was the highest bidder at an auction sale held on 22.8.1941, in respect of the right, title, interest of the insolvent Anraj Sankla, namely the leasehold right in the property described in the schedule to the certificate (suit property), that his bid of Rs. 8,350.00 was accepted and the sale was confirmed by the District Judge, Civil and Military Station, Bangalore on 25.8.1941. The sale certificate declared Bhowrilal to be the owner of the leasehold right in respect of the suit property. When a property is sold by public auction in pursuance of an order of the court and the bid is accepted and the sale is confirmed by the court in favour of the purchaser, the sale becomes absolute and the title vests in the purchaser. A sale certificate is issued to the purchaser only when the sale becomes absolute. The sale certificate is merely the evidence of such title. It is well settled that when an auction purchaser derives title on confirmation of sale in his favour, and a sale certificate is issued evidencing such sale and title, no further deed of transfer from the court is contemplated or required. In this case, the sale certificate itself was registered, though such a sale certificate issued by a court or an officer authorized by the court, does not require registration. Section 17(2)(xii) of the Registration Act, 1908 specifically provides that a certificate of sale granted to any purchaser of any property sold by a public auction by a civil or revenue officer does not fall under the category of non testamentary documents which require registration under subsec. (b) and (c) of sec. 17(1) of the said Act. We therefore hold that the High Court committed a serious error in holding that the sale certificate did not convey any right, title or interest to plaintiff's father for want of a registered deed of transfer."

28. The same principle has been laid down by the Apex Court in the case titled as Som Dev and others versus Rati Ram and another, 2006 10 SCC 788 . It would be profitable to reproduce para 15 of the judgment herein:

"15. Almost the whole of the argument on behalf of the appellants here, is based on the ratio of the decision of this Court in Bhoop Singh v. Ram Singh Major, 1995 5 SCC 709 , It was held in that case that exception under clause (vi) of Section 17(2) of the Act is meant to cover that decree or order of a Court including the decree or order expressed to be made on a compromise which declares the preexisting right and does not by itself create new right, title or interest in praesent in immovable property of the value of Rs.100/ or upwards. Any other view would find the mischief of avoidance of registration which requires payment of stamp duty embedded in the decree or order. It would, therefore, be the duty of the Court to examine in each case whether the parties had preexisting right to the immovable property or whether under the order or decree of the Court one party having right, title or interest therein agreed or suffered to extinguish the same and created a right in praesenti in immovable property of the value of Rs.100/ or upwards in favour of the other party for the first time either by compromise or pretended consent. If latter be the position, the document is compulsorily registrable. Their Lordships referred to the decisions of this Court in regard to the family arrangements and whether such family arrangements require to be compulsorily registered and also the decision relating to an award. With respect, we may point out that an award does not come within the exception contained in clause (vi) of Section 17(2) of the Registration act and the exception therein is confined to decrees or orders of a Court. Understood in the context of the decision in Hemanta Kumari Debi v. Midnapur Zamindari Co. Ltd., 1919 AIR(PC) 79 and the subsequent amendment brought about in the provision, the position that emerges is that a decree or order of a court is exempted from registration even if clauses (b)and (c) of Section 17(1) of the Registration Act are attracted, and even a compromise decree comes under the exception, unless, of course, it takes in any immovable property that is not the subject matter of the suit.

 

29. A question arose before the Madras High Court in a case titled as K. Chidambara Manickam versus Shakeena & Ors., 2008 AIR(Mad) 108 , whether the sale of secured assets in public auction which ended in issuance of a sale certificate is a complete and absolute sale or whether the sale would become final only on the registration of the sale certificate? It has been held that the sale becomes final when it is confirmed in favour of the auction purchaser, he is vested with rights in relation to the property purchased in auction on issuance of the sale certificate and becomes the absolute owner of the property. The sale certificate does not require any registration. It is apt to reproduce paras 10.13, 10.14, 10.17 and 10.18 of the judgment herein:-

"10.13 Part III of the Registration Act speaks of the Registration of documents. Section 17(1) of the Registration Act enumerates the documents which require compulsory Registration. However, subsection (2) of Section 10 sets out the documents to which clause (b) and (c) of subsection (1) of Section 17 do not apply. Clause (xii) of subsection (2) of Section 17 of the Registration Act reads as under:

"Section 17(2)(xii) any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue Officer."

10.14 A Division Bench of this Court in Arumugham, S. v. C.K. Venugopal Chetty,1994 1 LW 491 , held that the property transferred by Official Assignee, under order of Court, does not require registration under Section 17 of the Registration Act. The Division Bench has held as follows:

Court of Sessions can permit u/s. 301, 24(8) of CrPC to the advocate of victim to make oral argument too apart from submission of the written argument

Advocate is treated to be officer of the court and supposed to assist the court in arriving the truth, so, right to address the court to an Advocate cannot be curtailed while representing his client

    In proviso added to Section 24(8) Cr.P.C., the word used are "assist the prosecution" and not to assist the public Prosecutor as mentioned in Section 301 Cr.P.C. There is difference in the scheme of two sections. From perusal of Sub-section 2 of section 301 Cr.P.C., made it clear that if in any case private person instruct a pleader to prosecute any person in any court even though the Public Prosecutor in charge of case shall conduct the prosecution and the pleader instructed shall act therein under the directions of the Public Prosecutor. Up to this stage no permission of court is needed for appointment of pleader by a private person. The permission is only required to the pleader if he want to file written argument in the case. However after insertion of proviso to Section 24(8) Cr.P.C., the court can permits a victims advocate to assist the prosecution. The status and position of Advocate engaged by the victim would be changed because in that situation the court at the very inception may permit the Advocate of the choice of the victim to participate in the proceeding and to assist the prosecution and not to the public prosecutor. Prosecution include investigation, enquiry, trial and appeal within the meaning of Section 24 Cr.P.C. Section 301 Cr.P.C., deals with only inquiry, trial or appeal. Inquiry has been defined in Section 2(g) Cr.P.C., means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court. As such inquiry is different from investigation as defined in section 2(h) Cr.P.C.[Para No.39]

    Neither word prosecution nor trial has been defined in the Cr.P.C. Trial has been defined by the Apex Court in Union of India v. Major General Madan Lal Yadav [(1996) 4 SCC 127]. It means an act of proving or judicial examination or determination of the issues including its own jurisdiction or authority in accordance with law or adjudging guilt or innocence of the accused including all steps necessary thereto. Meaning of trial changes in view of specific provision of the code. The expression trial used in Section 306 Cr.P.C., includes both an inquiry as well as trial as held by the Apex Court in A. Devendran v. State of Tamilnadu (1997) 11 SCC 720.[Para No.40]

    The prosecution has not been defined specifically in the light of proviso to Section 24(8) Cr.P.C. The meaning of word prosecution as defined in Webster Dictionary, 3rd Edition is as follow;

"the carrying out of a plan, project, or course of action to or toward a specific end."[Para No.41]

..........

    The whole scheme if taken into consideration for prosecution and trial of an accused the dominant role is played by the public prosecutor but by insertion of proviso to Section 24(8) Cr.P.C., the Court is now authorised to permit the victim to engage a lawyer of his choice to assist the prosecution. The prosecution of an offender is virtually carried out in the court of law constituted under some statute presided over by a judge and not by any party to the proceedings. The public prosecutors, the advocate of the accused or special counsel appointed by the aggrieved person or the Advocate engaged by a victim, all are officers of the court. They all assist the court to arrive at truth during prosecution of an accused. Therefore in section 24 or in section 301 phrase with the permission of court is used. So, once the permission is accorded to the Advocate of the victim to assist the prosecution his assistance could not be restricted to the terminology of Section 301, i.e., only to assist the prosecutor. The court in view of the same can permit to advance the oral argument too to the Advocate engaged by the victim apart from submission of the written argument. The importance of oral argument cannot be out weight by saying that right to written argument has been given in Section 301 Cr.P.C.[Para No.43]