TMI Blog1967 (9) TMI 142X X X X Extracts X X X X X X X X Extracts X X X X ..... rt. The, trustees thereafter applied under 0. 21 r. 89 of the Code of Civil Procedure for setting aside the sale and deposited ₹ 250 being 5 % of the purchase-money for payment to the appellant and ₹ 6 for payment to the mortgagee, claiming that in consideration o the latter amount the mortgagee had agreed to give to them six months' for payment of the mortgage amount , and had agree, in the meantime to abandon the application for execution. The Subordinate Judge passed an order disposing of the execution application and directed that ₹ 250 out of the amount deposit, 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 bad 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e for recovery of money due from the trust, by sale of the property of the trust. 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 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 implied 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. The District Court was, in our judgmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cree-holder and to compensate the auction purchaser by paying him 5 % of the purchase-money. The provision, is not intended to defeat the claim of the auction purchaser, unless the decree is simultaneously satisfied. When the judgment creditor agrees to extend the time for payment of the amount for a specified period and in the meanwhile agrees to receive interest accruing due on the amount of the decree, the condition requiring the judgment debtor to deposit in Court for payment to the decreeholder the amount specified in the proclamation of sale for the recovery of which the sale was ordered. cannot be deemed to 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 claim of the decree-holder under the decree, the requirements of 0. 21 r. 89 are complied with: Subbayya v. Venkata Subba Reddi(A.I.R.1935 Mad. 1050.), Muthuvenkatapathy Reddy v. Kuppu Reddi and Others(A.I.R.1940 Mad. 427: I.L.R. [1940] Mad. 699.), Laxmansing Baliramsing v. Laxminarayan Deosthan(I.L.R.[1947] Nag. 802.). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at pp. 567-569.) 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 every .Judge is entitled to take such view as he chooses of the question 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 .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 in not deciding the question. Counsel for the auction purchaser relied upon two decisions in support of that proposition: Pinjare Karimbhai v. Shukla Hariprasad(3 Guj. L.R. 529.) and Haridas v. Rataney(23 Bom. L.R. 802) He urged that under the Bombay Reorganiza ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ef Justice. The Chief Justice of a Court may as a rule, 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 -round of 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 Pijare Karimbhai's case(3 Guj. L.R. 529.) and of Nacleod, C. J.. in Haridas's case(23 Bom. L. R. 802.) did not Jay down the 'correct law or rule of practice, it was open to him to recommend ,to the Chief Justice that the question be considered by a larger Bench. Judicial decorum, propriety and discipline required that lie should 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 or of s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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