Appeal No 500 of 1965
Appeal by special leave from the judgment and order dated February 5114 1963 of the Gujarat High Court in Civil Revision Application No 597 of 1961
M V Goswami for respondents Nos 1 to 3
MS K Sastri section P Nayar for R H Dhebar for respondent No 7
The Judgment of the Court was delivered by Shah 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 5000
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 3910 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 mortgagee property
The trustees did not pay the instalments due under the decree and in an application for execution by the mortgage the mortgaged property was put up for sale and the bid of the appellant was accepted for Rs 5000 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 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 Rs 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 457 Court of Gujarat in exercise of powers under s115 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 section 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 out of the matter
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 in 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 public trust shall be valid without the previous sanction of the Charity Commissioner
 Raju J was of the opinion that the expression sale  in section 36a 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 transactions of mortgage exchange or gift or lease of any immovable property in cls
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 provisions 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 question whether a sale in exercise of authority derived from the trustees eg 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 section 36 of the Act
We have no doubt however that the Legislature did not intend to put any restriction upon the power of the Civil Court executing a decree for recovery 458 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 section 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 judgment right in holding that the requirements of 0
21 r 89 of the Code of Civil Procedure were not complied 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 expression includes execution of a decree for sale of mortgaged property enables any person either owning such property or holding an 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 b for payment to the decree holder the amount specified 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 trustees of the trust had deposited Rs 250 for payment to the auction purchaser
They also 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 deposit
The 459 first condition was therefore fulfilled but the second condition of 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 abandonment 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 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 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 vs Venkata Subba Reddi1 Muthuvenkatapathy Reddy vs Kuppu Reddi and Others2 Laxmansing Baliramsing vs Laxminarayan Deosthan3
Rabindra Nath vs Harendra Kumar4
M H Shivaji Rao vs Niranjanaiah and Ant 
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
b of r 89
It is unnecessary to venture an opinion whether these cases were correctly decided
It is sufficient to observe that an order setting aside a court sale in execution of a mortgage 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 persuading the decree holder to abandon the execution proceed 1 AIR1935 Mad 1050
2 AIR1940 Mad 427 ILR 3 ILR1947 Nag
4 AIR1956 Cal 462
5 AIR1962 Mys 36 460 Before parting with the case it is necessary to deal with certain questions of fundamental importance in the administration of justice which the judgment of Raju J raises
The learned Judge observed I 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 follow that precedent
because by following the precedent the Judge would act contrary to section 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 questionof law arising in a matter before a single Judge or a DivisionBench
Such a judgment according to Raju
J would Dot 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 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
We may refer to the observations made by Venkatarama Aiyar
J in Jaisri Sahu vs Rajdewan Dubey and Others1 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 vs Shukla Hariprasad2 and Haridas vs Rataney2 He urged that under the Bombay Reorganization Act 1960 the 1 at pp
567 569
2 3  461 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 by a Full Bench of the High Court of Gujarat in State of Gujarat vs Gordhandas1 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 Bench of the Gujarat High Court had no existence in law
for in the absence of a provision in  the Constitution and the Character Act of 1861 a Judge of a High Court had no Power to refer a case to a Full Bench for determination of a question of law arising before him
and a decision given on a reference had no existence in law
The learned Judge also though 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 by the Charter of the Court in the Chief 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 same Court
or there are decisions of other High Courts in India which are strongly persuasive and take a view 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 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 requests 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 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 12 462 that the decision of Bhagwati J in Pijare Karimbhai s case1 and of Nacleod C J in Haridas s case2 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 superior authority
Gajendragadkar C J observed In Lala Shri Bhagwan  Anr
vs Shri Ram Chand and Anr
It is hardly necessary to emphasise that consideration of judicial propriety and decorum require that if a learned single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court 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
 In considering whether a precedent of a Court of coordinate authority is binding reference to section 165 of the Evidence Act is irrelevant
Undoubtedly every judgment must be based upon facts declarded by the Evidence Act to be relevant and duly proved
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 of a High Court before he enters 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 he will duly and faithfully and to the best of his ability knowledge and judgment perform the duties of office without fear or 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 Judge in ignoring the rule relating to the binding nature of 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
YP Appeal allowed


Summary:
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 that the mortgagee had agreed to give them time for payment of the mortgage 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 judgment 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 jurisdiction 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 section 36 of the Bombay Public Trust Act and was on that account invalid
The High Court remanded the case to the District Court
In appeal to this Court HELDThe order of the High Court should be set aside and that of the District Court restored
iTransactions of mortgage exchange or gift or lease of any immovable property in clauses a and b of section 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 property by 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 is involved within the meaning of section 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 a Court sale in execution of a mortgage decree cannot be obtained under 0
21 r 89 of the Code of Civil 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 iiiA 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
Any reference to section 165 of the Evidence Act or the Oath of Office of a High Court judge is irrelevant and will not justify a judge in ignoring the rule relating to the binding nature of precedents
Jaisri Sahu vs Rajdewan Dubey  Lala Shri Bhagwan vs Shri Ram Chand   Pinjare Karimbhai vs Shukla Hariprasad  Haridas vs Ratansey  and State of Gujarat vs Gordhandas