JUDGMENT - T.D. SUGLA, J.:---Shri Janardhan for the respondents (original plaintiffs) raised a preliminary objection. According to him the appeal as filed is incompetent. It is, therefore, proposed to consider the preliminary objection first. It is stated that a complaint/application was filed in this case before the Joint Charity Commissioner who by his order dated 27th July, 1982 passed under section 50-A of the Bombay Public Trusts Act, 1950 finally disposed the complaint/application. Appeal filed against that order by the appellants (original defendants) was also disposed of by the Appellate Court vide order and judgement dated 13th June, 1983 finally. In the above view of the matters appeal under section 100 of the Code of Civil Procedure and not an appeal from order under section 104 of the Code against the judgement and decree of the Appellate Court would be competent. The learned Counsel for the appellate fairly conceded that strictly speaking her client should have filed appeal under section 100 of the C.P.C. and not an appeal under section 104 of the C.P.C. treating the appellate judgment as an order. She, however, contended that the preliminary objection raised was very much belated particularly as it was not even raised at the stage of admission of this appeal as an appeal against order under section 104 of the C.P.C. on 1st August, 1983 by this Court and should not therefore be entertained at this late stage. Besides, she submitted that the objection was too technical. The Court has direction to convert the appeal against order into a regular appeal under section 100 of the Code and direct the appellant to pay the difference in Court fees. She placed reliance on the Bombay High Court decisions in the case of (Abdul Gafur v. Md. Mukaram)1, A.I.R. 1932 Bombay 77, at page 78 and the Supreme Court decision in the case of (The Reliable Water Supply Service of India (P.) Ltd. v. The Union of India and others)2, A.I.R. 1971 S.C. 2083 at pages 2084 and 2085 and the Goa High Court decision in the case of (Paixao Fernandes and another v. Amelia, de Souza and another)3, A.I.R. 1977 Goa, Daman Diu 8 at page 9 in support of the proposition that this Court has discretion to convert an appeal against order under section 104 of the C.P.C. into an appeal under section 100 of the C.P.C. Referring to section 107 of the Code of Civil Procedure, she urged that so far as the powers of this Court were concerned those were identical both in appeal filed under section 100 of the Code and an appeal against order filed under section 104 of the Code.

2. Evidently it is a case of bona fide mistake on the part of the appellants. They should have filed regular appeal under section 100 of the Code of Civil Procedure rather than an appeal against order under section 104 of the Code. However, to some extent, the respondents have also contributed to the continuance of this mistake inasmuch as even at the time of the admission of the appeal this objection was not raised. The appeal was filed within time and if the mistake was pointed out at that stage by the Registry or the respondents, regular appeal under section 100 of the Code could have been filed which would have been in time. Having regard to the above stated facts and keeping in view the decisions relied upon, I am of the view that it is a fit case for converting the appeal against order under section 104 to regular appeal under section 100 of the Code of Civil Procedure. This appeal is accordingly converted from appeal against order under section 104 to regular appeal under section 100 of the C.P.C. and the appellants are directed to pay difference in the Court fees so as to enable the office to regularise the matter.

3. As regards merits, the material facts are not very much in dispute. A little before 1963, an association named Versova Welfare Association was registered under the Society's Registration Act. It started a school in June 1962. A trust was sub

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