Judgement

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. 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 :

"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 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 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, gift or lease of any immovable property in Cls. (a) and (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