TRIBHUVANDAS PURSHOTTAMDAS THAKUR versus RATILAL MOTILAL PATEL

TRIBHUVANDAS PURSHOTTAMDAS THAKUR

RATILAL MOTILAL PATEL September 5, 1967

(J. C. SHAH. S. M. SIKRI AND J. M. SHELAT, JJ.)

Code of Civil Procedure, 1908; O. 29, r. 89-Mortgage decree-Sale in execution of-Judgment-creditor extending time for pay-ment ol mortgage amount-A mount specified in vroclamation of sale not deposited-If condition of rule satisfied.

Bombay Public Trusts Act, ss. 36(a) and 56B-'Sale' if includes court sale in execution of decree-Suit to enforce mortgage decree if suit or proceeding affecting public religious or charitable purpose -Precedents~Binding nature-Nature of order of reference to . Larger Bench.

The property of trust was sold in execution of mortgage decree. The trustees sought to set aside the sale under 0. 21, r. 89 of the Code of Civil Procedure. They deposited five per cent of the purchase money for payment to the auction purchaser and claimed that the mortgagee had agreed to give them time for payment of the mo<tgage amount, and has agreed in the meantime to abandon the application for execution. The subordinate judge set aside the sale. In appeal the District Court reversed that order holding that since the trustees failed to comply with r. 89 of 0. 21 requiring the judgtnent-debtor to deposit in court for payment to the decree-holder the amount specified in the proclamation of sale for the recovery of which the sale was ordered, the executing court had no jurisdic-E tion to set aside the sale. single Judge of the High Court, in revision, set aside the order on the ground that the sale of the mort-gaged property, which belonged to public trust, without the sanc-tion of the Charity Commissioner was prohibited by •S. 36 of the Bombay Public Trust Acf and was on that account invalid. The High Court remanded the case to the District Court. In appeal to this Court,

HELD: The order of the High Court should be set aside and that of the District Court restored.

(i) Transactions of mortgage, exchange or gift or lease of any immovable property in clauses (a) and (b) of s. 36 of the Bombay Public Trusts Act contemplated to be made by the Trustees are voluntary transactions and in. the absence of any clear provision in the Act, the expression 'Sale' in cl. (a) only means transfer of pr6-G perty ry the trustees for price and does not include Court sale in execution of decree. [457F-G]

suit to enforce mortgage or proceeding to enforce mort-gage decree against property belonging to public trust is not suit or proceeding in which question affecting public religious or charitable purpose ;s involved within the meaning of s. 56B of the · Act and therefore it is not obligatory upon the court to issue notice to the Charity Commissioner. [ 458C-D]

(ii) An order setting aside Court sale in execution of mort-gage decree cannot be obtained under O. 21 r. 89 of the Code of ClVll Procedure by merely depositing five per cent of the purchase money for payment to the auction purchaser and persuading the decree holder to abandon the execution proceeding. [ 459G-H]

(iii) Single Judge of. High Court is ordinarily bound to ac- cept as correct judgments of Courts of coordinate jurisdiction and of Division Benches and of the Full Benches of his Court and of this Court. Any reference to s. 165 of the Evidence Act or the Oath of Office of High Court judge is irrelevant and will not iU,Stify judge in ignoring the rule relating to the binding nature of pre-cedents.

Jaisri Sahu v. Rajdewan Dubey, [1962] 2 S.C.R. 558; Lala Shri Bhagwan v. Shri Ram Chand, [1965] 3 S.C.R. 218; Piniare Karimbhai v. Shukla Hariprasad, 3 Guj. L.R. 529; Haridas v. Ratansey, 23 Born. L.R. 802; and State of Gujarat v. Gordhandas, 3 Guj. L.R. 269.

CIVIL APPELLATE JuRISDICTION: Civil Appeal No. 500 of 1965.

Appeal by special leave from the judgment and order dated February 5 /14, 1963 of the Gujarat High Court in Civil Revision Application No. 597 of 1961.

M. V. Goswami, for respondents Nos. 1 to 3.

M. S. K. Sastri, S. P. Nayar for R. H. Dhebar, for repondent

The Judgment of the Court was delivered by

Sltall, J. Respondents 1 to 4 and respondent No. 6 are the trustees of public trust, styled "Shri Tricumraiji". In March 1950 the trustees mortgaged house belonging to the trust to one Saheba to secure repayment of Rs. 5,000. An action instituted by the mortgagee against the trustees to enforce the mortgage was compromised, .and it was decreed that the trustees do pay Rs. 3,910 due under the mortgage by monthly instalments of. Rs. 100 each, and in default of three instalments the entire amount remaining unpaid shall become due and recoverable from the mortgaged property. The trustees did not pay the instalments. due under J!' the decree, and in an application for execution by the mortgagee the mortgaged property was put up for sale and the bid of the appellant was accepted for Rs. 5,000 by the executing Court. The trustees thereafter applied under 0. 21 r. 89 of the Code of Civil Procedure for setting aside the sale and deposited Rs. 250 being 5% of the purchase-money for payment to the appellant and Rs. 63 0 . ·for payment to the mortgagee, claiming that in consideration of the latter amount the mortgagee had agreed to "give to them six months' for payment of the mortgage amount", and had agreed in the meantime to abandon the application for execution. The Subordinate Judge passed an order disposing of the execution application and directed that Rs. 250 out of the amount deposited by the trustees be paid over to the appellant. In appeal against that order by the appellant, the District Court reversed the order holding that since the trustees had failed to comply with the re-quirements of r. 89 of 0. 21 Code of Civil Procedure, the execut-ing Court had no jurisdiction to set · aside the sale. The High

Court of Gujarat in exercise of powers under s. 115 of the Code of Civil Procedure set aside the order of the District Court. Raju, J:, held that sale of the mortgaged property which belonged to public trust, without the sanction of the Charity Commissioner being prohibited by .s. 36 of the Bombay Public Trusts Act, was invalid, and on that view remanded the case to the District Court ll "for decision on all the points correctly arising out of the matter". Against that order, this appeal has been preferred with special leave.

The mortgaged· property belongs to public trust within the meaning of the Bombay Public Trusts Act. Section 36 of the Bom-bay Public Trusts Act reads as follows: ~ "Notwithstanding anything contained in the instru-ment of trust-

(a) no sale, mortgage, exchange or gift of any immov-able property, and

(b) no lease for period exceeding ten years m the case of agricultural land or for period exceed-ing three years in the case of non-agricultural land or building.

belonging to rmblic trust, shall be valid without the previous sanction of the Charity Commissioner."

:B Raju, J., was of the opinion that the expression 'sale' in s. 36(a) includes sale of the property of public trust in execution of decree of civil Court for recovery of debt due by the trust, and on that account sale in execution of decree held without the previous sanction of the Charity Commissioner must be deemed invalid. We are unable to agree with that view. Obviously the J transactions of mortgage. exchange or gift or lease of any immov-able property in els. (a) & (b) contemplated to be made by the trustees are voluntary transactions. and in the absence of any clear provision in the Act, the expression "sale" in cl. (a) would only mean transfer of property by the trustees for price. Section 36 occurs in Ch. V relating to 'Accounts and Audit', and is one of the. provisi9ns which imposes restrictions on the powers of the trustees. There is nothing to indicate, either in the words of the section. or in the context in which it occurs, that the sale prohibited without sanction of the Charity Commissioner includes Court . sale in execution of decree. For the purpose of the present case, we do not deem it necessary to express any opinion on the ques-B .lion whether sale in exercise of authority derived from the trustees, e.g. covenant for sale under an English mortgage executed .by the trustees or sale in terms of consent decree attracts the application of s. 36 of the Act. We have no doubt, ho\vever, that the Legislature did not intend to put any restriction .upon :the power of the Civil Court executing decree for recovery

of money due from the trust, by sale of the property of the trust. A.

The section imposes fetter upon the power of the trustees: it is not intended thereby to confer upon the Charity Commissioner an overriding authority upon actions of the Civil Court in execution of decrees.

The learned Judge also held that s. 56B of the Bombay Pub-lic Trusts Act which provides that "in any suit or legal proceed- ings in which it appears to the Court that any question affecting public religious or charitable purpose is involved, the Court shall not proceed to determine such question until after notice "has been given to the Charity Commissioner", made it obligatory upon the Court to issue notice to the Charity Commissioner, and if that officer desires to be joined as party, to implead him in proceeding to enforce mortgage by sale of the mortgaged pro· perty. In our judgment, that view also cannot be sustained. suit to enforce mortgage or proceeding to enforce mortgage decree against property belonging to public trust is not suit or proceeding in which question affecting public religious or charitable purpose is involved. J)

The District Court was, in our judgment, right in holding that the requirements of 0. 21 r. 89 of the Code of Civil Procedure \<ere not compli~d with and the Subordinate Judge. had no power to set aside the sale held in execution of the decree. Order 21 r. 89 of the Code of Civil Procedure which in terms applies to sale of immovable property in "execution of decree" which expres· g· sion includes execution of decree for sale of mortgaged pro-perty, enables any person either owning such property or holding r,n interest therein by virtue of title to apply to have the sale set aside on his depositing in Court,-

(a) for payment to the purchaser, sum equal to five per cent. of the purchase-money, and

(b) for payment to the decree-holdey, the amount spe· citied in the proclamation of sale as that for the recovery of which the sale was ordered, less any amount which may, since the date of such proclamation of sale, have been received by the decree-holder.

Rule 89 requires that two primary conditions relating to deposit must be fulfilled: the applicant must deposit in the Court for payment to the auction purchaser 5% of the purchase-money: he must also deposit the amount specified in the proclamation of sale less any amount received by the decree-holder since the date of proclamation of sale for payment to the decree-holder. In the present case, the truste!ls of the trust had deposited Rs. 250 for payment to the auction purchaser. They als_o deposited Rs. 63 for payment to the decree-holder. but it is· common ground that the claim of the mortgagee was not satisfied by that depo&it. Tue.

first condition was, therefore, fulfilled, but the second condition oC 0. 21 r. 89 was not fulfilled

It was urged, however, that the mortgagee having agreed to· abandon the execution proceeding and to wait for six months for· receiving payment of the mortgage dues from the trustees, aban-B donment of the execution proceeding was in law equivalent to payment to the decree-holder of the amount specified in the pro-clamation of sale for the recovery of which the sale was ordered. This in our Judgment is futile argument. 'By abandoning the execution proceeding the claim of the creditor is not extinguished: he is entitled to commence fresh proceedings for sale of the pro-perty. Rule 89 of 0. 21 is intended to confer right upon the judgment-debtor, even after the property is sold, to satisfy the claim of the decree-holder and to compensate the auction pur-chaser by paying him 5'.<· of the purchase·money. The provisiou is. not intended to defeat the claim of the auction purchaser, unless the decree is simultaneously .satisfied. When the judgment crc;d1tor agrees to extend the time for payment of the amount for speci-D tied period and in. the meanwhile agrees to receive interest ac-cruing due on the amount of the decree, the conditioi1 requirillg the judgment debtor to deposit in Court for payment tq the deqree-· holder the amount specified in the proclamation of sale for the recovery of which the sale was ordered, cannot be deemed lo be complied with. .

Our attention was invited to several decisions in which it was held, that if the judgment-debtor instead of depositing in Court the amount specified in the proclamation of sale for recovery of which the property is sold, satisfies the cla{m of the decree-holder under the decree, the requirements of o. 21 r. 89 are complied with: Subbayya v. Venkata Subba Rqddi('), M11t/111venkatapatl1y Reddy v. K11pp11 Reddi and Othersf!\, Laxmansing Baliramsing v. Laxminarayan Deosthan('), Rdbi11dra Nath v. Harendra Kumar('), M. H. Shivaji Rao v. Nfranjanaiah and Anr.('). These cases proceed upon interpretation of the expression "less any amount which may since the date of such proclamation of sale, have been received" occurring In cl. (bl of r. 89. It is unnecessary

to venture an opinion whethe1 these cases were correctly decided. It is sufficient to observe that an order setting aside court sale. in execution of mortga!l,t decree cannot be· obtained. under 0. 21 r. 89 of the Code of Civil Procedure by merely depositing 5% of the purchase-money for payment to the auction purchaser and p~rsuading the decree-holder to abandon the execution proceed-B ing.

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(') A.LR. 1935 Mad. 1050. (') A.LR. 1940 Mad. 427: l.L.R. [1940] Mad. 699.

(') I.L.R. [1917] Nag. 802.

(') A.LR. 1956 Cal. 462. (') A.IR 1962 Mys. 36.

Before parting with the case, it is necessary to deal with .& .certain questions of fundamental importance in the administra-:tion of justice which the judgment of Raju, J., raises. The learn-ed Judge observed-(!) that even though there is judgment of Single Judge of the High Court of which he is member or of Division Bench of that High Court, he is not bound to foll•w that precedent. because by following the precedent the Judge 1 would act contrary to s. 165 of the Indian Evidence Act, and would also violate the oath of office taken by him when entering upon his duties as Judge under the Constitution; and (2) that judgment of Full Bench of the Court may be ignored by Single Judge, if the Full Bench judgment is given on reference made on question of law arising in matter before single Judge or Division Bench. Such judgment, according to Raju, J., would "not be judgment at all" and "has no existence in law".

The observations made by the learned Judge subvert the accepted notions. about the force or precedents in our system of judicial administration. Precedents which enunciate rules of law form the foundation of administration of justice under our system. It has been held time and again that single Judge of .a High Court is ordinarily bound to accept as correct judgments of Courts of coordinate jurisdiction and of Division Benches and of the Full Benches of his Court and of this Court. The reason of the rule which makes precedent binding lies in the desire to .secure uniformity. and certainty in the law. lll

We may refer to the observations made by Venkatatama .Aiyar, J., in Jaisri Sahu v. Rajdewan Dubey and Others(') and the cases referred to therein. If decisions of the same or supe-rior Court are ignored, eventhough directly applicable, by Judge in deciding case arising before him, on the view that c:very Judge is entitled to take such view as he chooses of the question 1 of law arising before him as Venkatarama Aiyar, J., observed, the "law will be bereft of all its utility if it should be thrown into state of uncertainty by reason of conflicting decisions".

The effect of precedent of the Gujarat High Court fell to be considered indirectly in this case. Before Raju, J., it was urged for the first time in the course of this litigation that in the absence ·of the sanction of the Charity Commissioner the Court sale was :invalid. Counsel for the auction purchaser contended that this · . .question was not raised before the District Court and that Court .cannot be said to have acted· illegally or with material irregularity fa not deciding the question. Counsel for the auction purchaser .relied upon two decisions in support of that proposition: Pinjare Karimbhai v. Shukla Hariprasad(') and Haridas v. Rataney(') He urged that under the Bombay Reorganization Act, 1960, the

q') (1962] ~ S.C.R. 558 at pp. 567-569.

(') 3 Guj. L.R. 529. (') 23 Born. L.R. 802.

jurisdiction of the Bombay High Court which originally extended over the territory now forming part of the State of Gujarat. ceased when new High Court was set up in the State of Gujarat, but it was held bv Full Bench of the High Court of Gujarat in State of Gujarat ~. Gordhandas(') that the decision of the Bombay High Court will be regarded as binding since the Gujarat High Court had inherited the jurisdiction. power and authority in respect of the territory of Gujarat. When pressed with the observations made in the two cases cited at the Bar. Raju, J .. found an easy way out. He observed that the judgment of the Full Be~ch of the Gujarat High Court had "no existence in law". for m the absence of provision in the Constitution and the Charter Act of J861, Judge of High Court had no power to refer case to Full Bench for determination of question of law .arising before· him. and decision eiven on reference "had no existence in law". The learned Judge also thought that if Judge or Divi-sion Bench of Court makes reference on question of law to Full Bench for decision, it would in effect be assuming the juris-diction which is vested bv the Charter of the Court in the Chief Justice of the High Court. In so observing the learned Judge completely misconceived the nature of reference made by Judge or Bench of Judges to larger Bench. When it appears to Single Judge or Division Bench that there are conflicting decisions of the 8ame Court, or there are decisions of other High Courts in India which are strongly persuasive and take view· different from the view which prevails in his or their High Court,. or that question of law of importance arises in the trial of case, the Judge or the Bench passes an order that the papers be placed before the Chief Justice of the High Court with request to form special or Full Bench to hear and dispose of the case· or the questions raised in the case. For making such request to the Chief Justice, no authority of the Constitution or of the, Charter of the High Court is needed, and by making such re-quest Judge does not assume to himself the powers of the Chief Justice. Single Judge does not by himself refer the matter to· the Full Bench: he only request~ the Chief Justice to constitute Full Bench for hearing the matter. Such Bench is constituted by the Chief Justice. The Chief Justice of Court aiay as rule, out of deference to the views expressed by his colleague, refer the case: that does not mean, however, that the source of the autho-rity is in the order of reference. Again it would be impossible tO' hold that judgment delivered by Full Bench of High Court after due consideration of the points before it is liable to be re-garded as irrelevant by Judges of that Court on the ground of

R some alleged irregularity in the constitution of the Full Bench.

The judgment of the Full Bench of the Gujarat High Court was binding upon Raju. J., If the .learned Judge was of the view

<that the decision of Bhagwati, J., in Pinjare Karimblwi's easel') .and of Mac!cod. C. J .. in Haridav's case(') did not lay down the correct law or rule of practice. it was open to him to recommend . to the Chief Justice that the qucs(ion be considered by larger Bench. Judiciul decorum. propriety and discipline required that he shJ4k1 not ignore it. Our system of administration of justice , aims at certainty in the law and that can be achieved only if , Judges do not ignore decisions by Courts of coordinate authority "°r of superior authority. Gajendragadkar, C. J., observed in ).,aid Shri Bhagwan & Am-. v. Shri Ram Chand and A11r.(").

"It is hardly necessary to emphasise that considera-tions of judicial propriety and decorum require that if learned single Judge hearing malter is inclined to take the vie"'. that the earlier decis'ons of the High Courl. whether of Division Bench or of single Judge. need to be re-considered, he should not embark upon that en-quiry sitting as single Judge. but should refer the matter to Division Bench, or, in proper case. place the rele-vant papers before the Chief Justice to enable him to constitute larger Bench to examine the question. That is the proper and traditional way to deal with such mat-ters and it is founded on healthy principles of judicial decorum and propriety."

In considering whether precedent of Court of coordinate ·authority is binding reference to s. 165 of the Evidence Act is 'irreJJ:vant. Undoubtedly, every judgment must be basll<l upon 'facts declarded by the Evidence Act to be relevant and duly prov-red. But when Judge in deciding case follows precedent, he only regards himself bound by the principle underlying the judg-ment and not by the facts of that case.

It is true that every Judge ofa High Court before he eniers ·upon his office takes an oath of office that he will bear true faith and allegiance to the Constitution of India as by law established and that ho will duly and faithfully and to the best of his ability, 'knowledge and judgment perform the duties of office without fear -0r favour. affection or illwill and that he will uphold the Constitu-tion and the laws: but there is nothing in the oath of office which •warrants Ju8ge in ignoring the rule relating to the binding nature «Jf the precedents which is uniformly followed.

The appeal is allowed and the order passed by the High Court

set aside and the order passed by the District Court restored.

In the circumstances. there will be no order as to costs in this Court and in the High Court.

Appeal a/lmru'.

(') 3 Guj. L.R 529. (') 2:l Born. L.R. 802. t ') (1965) 3 SC R 218.