JUDGMENT
Usha, J.
1. Revision petition is at the instance of the judgment debtors in O. S. 1037/89 of the Sub-Court, Thrisaur, Respondent-decree holder applied for sale of 30 Cents of land comprised in Sy. No. 81/1 of Nedumpura village of Thalappilly Taluk in execution of the money decree. Judgment debtors filed objection to the notice under Order XXI, Rule 66, C.P.C., contending that the property sought to be sold is not liable to be sold since the property is that of a school. The above objection was disposed of by the Execution court with a direction to incorporate an objection in sale paper. Upset price was fixed and sale was posted on 23-9-1996. The above order is under challenge in the revision petition.
2. It is contended by the revision petitioner that 30 Cents of land which was directed to be sold in Court auction is part of 99 Cents of land belonging to Sree Narayana L. P. School, Vettikkattiri. Section 6 of the Kerala Education Act, 1958 contains a bar for sale, mortgage, lease, pledge, charge or transfer of possession of any property of an aided school. Therefore, according to the revision petitioners, the’ order directing sale of the property is unsustainable in law. An interim order of stay granted by this Court was vacated on 8-10-1996 and the execution Court was allowed to proceed with the execution.
3. C. M. A. 27/98 is filed by the decree holder in O. S. 1037/89 before the Sub-Court, Thrissur, who is the respondent in E. A. 247/97 and petitioner in E.P. 906/92. The judgment and decree in O.S. 1037/89 was under appeal in A. S. 92/92. In C. M. P. 978/92, this Court had passed a conditional order of stay on 10-10-1995 directing the appellants-judgment debtors to furnish security for the decree amount within one month. Since the above direction was not complied with, stay was vacated. The property having an extent of 30 cents in Sy. No. 81/1 in Vettikkattiri desom.
Nedumbura village, Talappilly taluk, Trichur district, which was under attachment before judgment, was proclaimed for sale. As mentioned earlier, judgment debtors approached this Court by filing C. R. P. 1928/96 challenging the order passed on their objection to notice under Order XXI, Rule 66, C.P.C. Since the order of stay granted in the C. R. P. was vacated on 8-10-1996, the property was sold on 25-1-1997 and it was purchased by the decree holder.
4. Respondents-judgment debtors thereupon filed E.A. 247/97 under Order XXI, Rule 90, C.P.C., for setting aside the sale on the ground that since the property belongs to an aided school, it cannot be brought to sale in view of the provisions contained under Section 6 of the Kerala Education Act. The application was allowed by order dt. 14-10-1997 and the sale was set aside. Aggrieved by the above, decree holder has filed the above appeal.
5-6. It was submitted by both sides that the only question to be decided in the revision petition as well as in the appeal is whether the provisions of Section 6 of the Kerala Education Act imposing restriction on alienation of property of aided school would apply to a Court sale. Since the issue involved is interpretation of Section 6 of the Kerala Education Act, 1958, and since a decision on the above issue in these two cases would have general application, we issued notice to the Advocate General on 10-2-1998. The case was then adjourned on several occasions for the convenience of the learned Advocate General and ultimately, on 11-1-1999, this Court passed an order directing the cases to be posted on 18-1-1999 and if, on that day, learned Advocate General was not available, learned Addl. Advocate General to appear to assist the Court. Thus, we heard learned counsel appearing for parties in these two cases as also Shri. T. M. Mohammed Youseff, learned Addl. Advocate General.
7. Section 6 of the Kerala Education Act reads as follows:
“6. Restriction on alienation of property of aided school:– (1) Notwithstanding anything to the contrary contained in any law for the time being in force, no sale, mortgage, lease, pledge, charge or transfer of possession in respect of any
property of an aided school shall be created or made except with the previous permission in writing of such officer not below the rank of a District Educational Officer, as may be authorised by the Government in this behalf. The officer shall grant such permission applied for unless the grant of such permission will, in his opinion adversely affect the working of the school.
(2) Any person aggrieved by an order of the officer refusing or granting permission under Sub-section (1) may in such manner and within such time as may be prescribed, appeal to the Government.
(3) Any transaction made in contravention of Sub-section (1) or Sub-section (2) shall be null and void.
(4) If any educational agency or the manager of any school acts in contravention of Sub-section (1) or of an order passed under Sub-section (2) Government may withhold any grant to the school.”
The contention raised by learned counsel for the appellant in C. M. A. 27/98 is that the provisions of Section 6 have no application to Court sale. It applies only to voluntary transactions. According “to learned counsel, just like a Court sale being taken out of Section 52 of the Transfer of Property Act by Section 2(d) of the same Act, Section 6 of the Kerala Education Act, 1958 has to be understood as not covering transfer of property in execution of a decree or order of the Court. Referring to 1986 Ker LT 919 (Maroli Balan v. Maroli Dannu) it was submitted that this Court has held that a partition suit is not barred by Section 6. Reliance was also placed by the learned counsel on two other decisions of this Court, Kesava Kurup v. State of Kerala, (1987) 2 Ker LT 801 and Thankamma Kunjamma v. Gopalakrishnan Unnithan, (1992) 1 Ker LJ 415.
8. Learned Addl. Advocate General contended that the provisions under Section 6 are enacted to see that the conduct of the school shall not be adversely affected by alienation of the property of the aided school. Referring to Rule 1 in Ch. IV of the Kerala Education Rules, 1959, it was pointed out that a minimum area as specified under the Rule is required for establishment of the schools. As far as lower primary schools and
upper primary schools, with or without lower primary section, are concerned, the required area of the site is 0.4 to 0.8 hectares, for Secondary Schools (High Schools) with or without Primary Section, it is between 1, 2 to 2 hectares, for Higher Secondary Schools with or without Primary Section 1.2 to 2 hectares and for Training School with or without Model Schools, 1.2 hectares. These statutory provisions are made for the proper functioning of the schools. Therefore, if, by any mode of alienation the area required for the schools is reduced, it will certainly adversely affect the interest of the school. Learned Addl. Advocate General submitted that proper functioning of the school is necessary to protect the interest of the student community at large. Kerala Education Act and the Rules made thereunder being special law, it would override the provisions of Transfer of Property Act. In support of the above contention, reliance was placed on the decision of the Supreme Court in Narcotics Control Bureau v. Kishan Lal, (1991) 1 SCC 705 : (AIR 1991 SC 558). It is further contended that Section 6 of the Transfer of Property Act, 1882 itself provides that the property of any kind may be transferred except as otherwise provided by that Act or by any other law for the time being in force. Therefore, there is no conflict between the provisions contained in Section 6 of the Kerala Education Act with the provisions of the T.P. Act. Sub-section (1) of Section 6 itself provides that the officer authorised shall grant permission for alienation of the property of the aided school, if, in his opinion, such transfer will not adversely affect the working of the school. Therefore, in cases where the aided schools are having large areas of property, it may be permissible to alienate a portion of the same without adversely affecting the interest of the school. Learned Addl. Advocate General submitted that even an execution Court can consider the question whether the property against which execution is taken is saleable. Order XXI, Rule 64 would show that the property which can be brought to sale by the Court, must be one liable to sale. Reliance was placed by learned Addl. Advocate General on a decision of the Madras High Court in Mohan Ram (minor) v. T.L. Sundararamier, AIR 1960 Madras 377 where it was held that the alienation
of service inam lands is prohibited on the grounds of public policy either by statute or under the general law and where, in spite of such prohibition, the holder mortgages his property and allows a mortgage decree to be passed against him without setting up the inalienability of the lands but raises the objection to their saleability for the first time in the executing Court, it is open to the executing Court, on being satisfied that the lands are service inam lands and therefore not saleable, to stay its hand. Learned Addl. Advocate General therefore contended that Section 6 of the Kerala Education Act can be given only one interpretation, namely, that it prohibits all kinds of alienation including Court sale.
9. Sri K. Divakaran Nair, learned counsel appearing on behalf of the respondent in C. M. A. 27/98 and the petitioner in C.R.P. 1928/96 referring to the provisions contained under Section 60 of the C.P.C. 1908, submitted that the property of the judgment debtor that can be brought to sale in execution of a decree must be a property over which the judgment debtor has disposing power. In the light of the prohibition contained under Section 6 of the Kerala Education Act, Manager of the school has no disposing power over the property of the school. If that be so, such property is not liable to be brought to sale through Court in execution of a decree.
10. On an anxious consideration of the contentions raised by both sides, we do not find it possible to understand the prohibition on alienation of the property of aided school brought under Section 6 of the Kerala Education Act as one which would not take into its fold a Court sale. The decisions relied on by the learned counsel for the appellant in support of his contention are not directly applicable to the issue raised in the appeal. In 1986 Ker LT 919 supra, the question that came up for consideration was whether a suit for partition of a school and its properties is barred by Section 6(1) of the Kerala Education Act. A Bench of this Court took the view that it will not, for the reason that partition of a family property is not an alienation or a transfer in the strict sense. It is relevant to note that this Court upheld the view taken by the trial Court that the suit property being a school the land appurtenant thereto, cannot be partitioned by metes and bounds
without adversely affecting running of the school. In order to avoid that contingency, trial Court had directed to auction the suit properties between the plaintiffs and the 1st defendant and then apportion the sale proceeds in proportion to the shares of the respective sharers. While upholding the view taken by the trial Court, this Court observed that it was so done in order to see that the partition does not adversely affect running of the school as such. This decision will not help the appellant; on the other hand, it would show the necessity of a provision like one in Section 6 of the Kerala Education Act not to permit alienation of the properties belonging to the school, if it would adversely affect the running of the school.
11. In 1987 (2) Ker LT 801 supra, it was a transfer of the entire school and its properties. There was no transfer of the property of the school separately. Following an earlier decision of this Court in P.V. John v. Director of Public Instruction, ILR (1975) 2 Ker 604, it was held that when the entire school, along with its property is transferred, such a transfer will not fall within the mischief of Section 6 of the Act. In (1992) 1 Ker LJ 415 supra, the school itself was transferred along with its property by way of gift deeds. The contention that the transfer was hit by section 6, was rejected by the learned single Judge of this Court. It was held that Section 6 restricts alienation of property of a school because in such a case, the working of the school will be adversely affected, if the property of the school goes into the hands of the third parties. When a school is transferred as a going school, this difficulty will not arise and hence the restriction under Section 6 cannot apply to such a transfer.
12. We do not find any reason to hold that the ban under Section 6 will not be applicable to Court sale. There is no merit in the contention raised by counsel for the appellant quoting analogy of Section 52 of the Transfer of Property Act. Section 52 of the T. P. Act prohibits transfer of any right in the immovable property, pending suit relating thereto. This section does not apply to Court sales which are involuntary sales in view of the provisions contained under Section 2(d) of the T. P. Act. But, Courts are taking the view that even though the Section as such is not applicable to involuntary sales, the principles of lis pendens
applies to such alienations also (Samarendra Nath Sinha v. Krishnakumar Nag, 1967 (2) SCR 18 : (AIR 1967 SC 1440)).
12-A. Learned counsel for the appellant referred to Law Lexicon by Ramanatha Iyer, page 53 and relied on the following :
“‘Alienation’ differs from ‘descent’ in this, that ‘alienation is effected by the voluntary act of the owner of the property, while, ‘descent’ is the legal consequence of the decease of the owner, and is not changed by any previous act of volition of the owner.” Burbank v. Rockingham Mut. F. Ins. Co., 57 Am. Dec. 300″.
He contended that since Court sale is not a voluntary sale, it will not come within the term “alienation’. He pointed out that the title to Section 6 is restriction on alienation of property of aided school. Therefore, according to him, a Court sale, which is not a voluntary sale, would not come within Section 6. We do not find any merit in this contention. The paragraph quoted by the learned counsel from Law Lexicon is with reference to difference between alienation and descent. The distinction is not between a voluntary transfer and an involuntary transfer. In the same page of Law Lexicon, the meaning of the word ‘alienation’ is given as ‘transfer of ownership’ . ‘Alienation’ is as much to any, as to make a thing another man’s or to alter or put the possession of lands, or other things, from one man to another. We find, nowhere it is mentioned that alienation would take in only voluntary transfer. On the other hand, in Words and Phrases, Permanent Edition, Volume 3 while referring to the scope of different meanings of the term alienation, it is shown that an execution and sale also would come under the term ‘alienation’. At page 165, the following reference is made :
“A Sheriff’s execution sale was an “alienation” of land so as to bar wife who was not a party to the judgment and sale from maintaining suit for assignment of dower more than three years after husband’s death. Code 1923, 7450. Edmundson v. Snodgrass, 187 So. 191, 192, 237 Ala. 426……… the word “alienation” includes sale of the property of the husband on execution against him alone. Butler v. Fitzgerald, 61 NW 640, 641, 43 Neb 192, 27 LRA 252, 47 Am. St. Rep. 741.”
Apart from the above, we find that in the body of Section 6 the word used is ‘sale’ which would take in both voluntary and involuntary sale.
13. We are inclined to accept the contention raised by the learned Add). Advocate General that the legislative intent behind the ban under Section 6 is the well maintenance and proper conduct of the aided schools which is absolutely essential in public interest. Taking into consideration the object of the restriction on alienation brought about by Section 6 of the Kerala Education Act, namely, the well being of the schools, we are of the view that there is no reason to exclude Court sale from its area of operation. When Kerala Education Act, which is a special law imposes such ban, it will have overriding effect on the provisions of Transfer of Property Act, as was contended by the learned Addl. Advocate General.
14. We therefore, hold that the Court below was fully justified in allowing E.A. 247/97 in E.
P. 906/92 holding that the sale of the property belonging to the school conducted in execution of the decree in OS 1037/89 is vitiated and is liable to be set aside. In the result, C. M. A. 27/98 stands dismissed.
15. As mentioned earlier, the revision petition is at the instance of the judgment debtors challenging the order in E.P. 906/92 dt. 25-7-1996 proceeding with the sale in spite of the objection raised by the judgment debtors under Rule 66 of Order XXI contending that the property of the schools is not liable to be sold in view of the prohibition of Section 6 of the Kerala Education Act. For the reasons stated by us in the earlier portion of this judgment, we set aside the order impugned in C.R.P. 1928/96 and allow the revision petition. There will be no order as to costs.