# TRIBHUVANDAS PURSHOTTAMDAS THAKUR v. RATILAL MOTILAL PATEL

- **Citation:** [1968] 1 S.C.R. 455
- **Court:** Supreme Court of India
- **Decided:** 1967-09-05
- **Case number:** Civil Appeal No. 500 of 1965
- **Bench:** J. C. Shah. S. M. Sikri, J. M. Shelat
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/tribhuvandas-purshottamdas-thakur-v-ratilal-motilal-patel-4119
- **Pages:** 8

## Headnote

Code of Civil Procedure, 1908; O. 29, r. 89-Mortgage decreeSale in execution of-Judgment-creditor extending time for payment 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 jurisdicE 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 mortgaged property, which belonged to a public trust, without the sanction 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 pr6G 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 mortgage 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 mortgage 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 precedents.
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.

## Text

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 decreeSale in execution of-Judgment-creditor extending time for payment 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 jurisdicE 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 mortgaged property, which belonged to a public trust, without the sanction 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 pr6G 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 mortgage 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 mortgage 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 precedents.
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
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 B
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 requirements of r. 89 of 0. 21 Code of Civil Procedure, the executing Court had no jurisdiction to set · aside the sale. The High
TRIBBUVANDAS fl RATILAL (Shiih, J.)
457
A 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 a
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".
~
D
Against that order, this appeal has been preferred with special
leave.
The mortgaged· property belongs to a public trust within the
meaning of the Bombay Public Trusts Act. Section 36 of the Bombay Public Trusts Act reads as follows:
"Notwithstanding anything contained in the instrument of trust-
(a) no sale, mortgage, exchange or gift of any immovable property, and
(b) no lease for a period exceeding ten years m the
case of agricultural land or for a period exceeding three years in the case of non-agricultural
land or a building.
belonging to a 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 a sale of the property of a public trust in execution of a
decree of a civil Court for recovery of a debt due by the trust, and
on that account a sale in execution of a 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 immovable 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 a price. Section 36
occurs in Ch. V relating to 'Accounts and Audit', and is one of the.
G 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 a Court . sale in
execution of a decree. For the purpose of the present case, we
do not deem it necessary to express any opinion on the quesB .lion whether a sale in exercise of authority derived from the
trustees, e.g. a covenant for sale under an English mortgage
executed .by the trustees or a sale in terms of a 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 a decree for recovery
SUPREME CQURT REPQRTB
(1968j ~ S.C.B.
of money due from the trust, by sale of the property of the trust. A.
The section imposes a 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 Public Trusts Act which provides that "in any suit or legal proceed- B
ings in which it appears to the Court that any question affecting
a 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 a party, to implead him in a C
proceeding to enforce a mortgage by sale of the mortgaged pro·
perty. In our judgment, that view also cannot be sustained. A
suit to enforce a mortgage or a proceeding to enforce a mortgage
decree against property belonging to a public trust is not a suit
or proceeding in which a question affecting a 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 a decree" which expres· g·
sion includes execution of a decree for sale of mortgaged property, enables any person either owning such property or holding
r,n interest therein by virtue of a title to apply to have the sale
set aside on his depositing in Court,-
(a) for payment to the purchaser, a sum equal to five
per cent. of the purchase-money, and
F
(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.
G
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 B
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.
TRIBBUVANDAS V RATILAL (Shah, J.)
A 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, abanB donment of the execution proceeding was in law equivalent to
payment to the decree-holder of the amount specified in the proclamation of sale for the recovery of which the sale was ordered.
This in our Judgment is a 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 property.
Rule 89 of 0. 21 is intended to confer a right upon the
C judgment-debtor, even after the property is sold, to satisfy the
claim of the decree-holder and to compensate the auction purchaser 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 a speciD tied period and in. the meanwhile agrees to receive interest accruing 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. .
E
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
F 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
G to venture an opinion whethe1 these cases were correctly decided.
It is sufficient to observe that an order setting aside a court sale.
in execution of a 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 proceedB ing.
~------~
(') 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.
460
SUPRE:!IE COURT REPORTS
[1968) I S.O.R.
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 learned Judge observed-(!) that even though there is a judgment of a
Single Judge of the High Court of which he is a member or of
a 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 a Judge under the Constitution; and (2) that a
judgment of a Full Bench of the Court may be ignored by a
Single Judge, if the Full Bench judgment is given on a reference
made on a question of law arising in a matter before a single
Judge or a Division Bench. Such a judgment, according to Raju, C
J., would "not be a 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 D
system. It has been held time and again that a 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 a 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 a superior Court are ignored, eventhough directly applicable, by a Judge
in deciding a 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 a
state of uncertainty by reason of conflicting decisions".
The effect of a 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 G
·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(') B
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.
TRHH!:L\X!JAS t' RA'l'lI.AL (Sita/,, J.)
4HT
A jurisdiction of the Bombay High Court which originally extended
over the territory now forming part of the State of Gujarat. ceased
when a new High Court was set up in the State of Gujarat, but it
was held bv a 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
B 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 a provision in the Constitution and the Charter Act of
J861, a Judge of a High Court had no power to refer a case to a
C Full Bench for determination of a question of law .arising before·
him. and a decision eiven on a reference "had no existence in
law". The learned Judge also thought that if a Judge or a Division Bench of a Court makes a reference on a question of law to
a Full Bench for decision, it would in effect be assuming the jurisdiction which is vested bv the Charter of the Court in the Chief
D Justice of the High Court.
In so observing the learned Judge
completely misconceived the nature of a reference made by a
Judge or a Bench of Judges to a larger Bench.
When it appears
to a Single Judge or a 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 a view·
E different from the view which prevails in his or their High Court,.
or that a question of law of importance arises in the trial of a
case, the Judge or the Bench passes an order that the papers be
placed before the Chief Justice of the High Court with a request
to form a special or Full Bench to hear and dispose of the case·
or the questions raised in the case. For making such a request
F to the Chief Justice, no authority of the Constitution or of the,
Charter of the High Court is needed, and by making such a request a Judge does not assume to himself the powers of the Chief
Justice. A Single Judge does not by himself refer the matter to·
the Full Bench: he only request~ the Chief Justice to constitute
a Full Bench for hearing the matter. Such a Bench is constituted
by the Chief Justice. The Chief Justice of a Court aiay as a rule,
G out of deference to the views expressed by his colleague, refer the
case: that does not mean, however, that the source of the authority is in the order of reference. Again it would be impossible tO'
hold that a judgment delivered by a Full Bench of a High Court
after due consideration of the points before it is liable to be regarded 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
(') 3 Guj. L.R. 269.
462
SL1PREME COURT REPOR'l'S
[1968) l s.c'.R.
<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 a larger
Bench.
Judiciul decorum. propriety and discipline required that
he shJ4k1 not ignore it.
Our system of administration of justice
A
, aims at certainty in the law and that can be achieved only if B
, 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 considerations of judicial propriety and decorum require that if a
learned single Judge hearing a malter is inclined to take
the vie"'. that the earlier decis'ons of the High Courl.
whether of a Division Bench or of a single Judge. need
to be re-considered, he should not embark upon that enquiry sitting as a single Judge. but should refer the matter
to a Division Bench, or, in a proper case. place the relevant papers before the Chief Justice to enable him to
constitute a larger Bench to examine the question. That
is the proper and traditional way to deal with such matters and it is founded on healthy principles of judicial
decorum and propriety."
c
D
In considering whether a precedent of a 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 E
'facts declarded by the Evidence Act to be relevant and duly provred. But when a Judge in deciding a case follows a precedent, he
only regards himself bound by the principle underlying the judgment 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 F
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 Constitution and the laws: but there is nothing in the oath of office which
•warrants a Ju8ge in ignoring the rule relating to the binding nature G
«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.
Y.P.
(') 3 Guj. L.R 529.
(') 2:l Born. L.R. 802.
t ') (1965) 3 SC R 218.
Appeal a/lmru'.
B
I
;, ' ?
~' i •