TRIBHUVANDAS PURSHOTTAMDAS THAKUR versus RATILAL MOTILAL PATEL

Citation: [1968] 1 S.C.R. 455 · Decided: 05-09-1967 · Supreme Court of India · Bench: J.C. SHAH · Disposal: Appeal(s) allowed
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Judgment (excerpt)

A 
TRIBHUVANDAS PURSHOTTAMDAS THAKUR 
B 
v. 
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 
c if suit or proceeding affecting public religious or charitable purpose 
-Precedents~Binding nature-Nature of order of reference to . 
Larger Bench. 
The property of a trust was sold in execution of a 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 
D 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. A 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 a 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, 
F 
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 a price and does not include a Court sale 
in execution of a decree. [457F-G] 
A suit to enforce a mortgage or a proceeding to enforce a mort-
gage decree against property belonging to a public trust is not a 
suit or proceeding in which a 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 
H to the Charity Commissioner. [ 458C-D] 
(ii) An order setting aside a Court sale in execution of a 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] 
456 
SUPllllME COURT REPORTS 
[1968) 1 8,C.B., 
(iii) A Single Judge of. a High Court is ordinarily bound to ac- A 
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 a High Court judge is irrelevant and will not iU,Stify 
a 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 B 
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 C 
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 
No. 7. 
D 
The Judgment of the Court was delivered by 
Sltall, J. Respondents 1 to 4 and respondent No. 6 are the 
trustees of a public trust, styled "Shri Tricumraiji". In March 
1950 the trustees mortgaged a house belonging to the trust to one 
Saheba to secure repayment of Rs. 5,000. An action instituted by E
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