TRIBHOVANDAS PURSHOTTAMDAS THAKKAR Vs. RATILAL MOTILAL PATEL

JUDGEMENT

(1.) 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 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 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 O. 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/- 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 requirements of R. 89 of O. 21, Code of Civil Procedure, the executing 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 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 "for decision on all the points correctly arising nut of the matter". Against that order, this appeal has been preferred with special leave.

(2.) 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:

(3.) The learned Judge also held that S. 56-B of the Bombay Public Trusts Act which provides that "in any suit or legal proceedings 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 proceeding to enforce a mortgage by sale of the mortgaged property. 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.