N. M. MIABHOY, J. ( 1 ) IN order to dispose of this appeal it is necessary to mention a few facts. There were two sisters named Dahi and Parvati. Both these sisters were residing together in one house situated at Karjan. Both of them were widows and without any issue. Parvati executed a will on 2-6-1952 and Dahi executed a will on 12-2-1954. Parvati died on 14 and Dahi died on 16-5-1954. It is common ground that both Bai Parvati and Bai Dahi created certain religious trusts in their respective wills. Several trustees were appointed by each of the sisters to administer the religious trust created by her. Two of these trustees were common. After the deaths of the two sisters the two common trustees made applications to the Assistant Charity Commissioner as they were required to do under the law to register the trusts and showed in each application the properties which according to them were trust properties bequeathed by the two sisters. One of the items in each of these two applications was an item of ornaments. According to the two common trustees each of the two sisters possessed at the time of her death ornaments worth Rs. 8 0 and that these ornaments constituted part of the trust properties the Respondents Nos. 1 and 2 contested these allegations of the two trustees. The latter two are appellants in this Court. The contention of the Respondents Nos. 1 and 2 was that all the ornaments worth Rs. 16 0 were part of the estate of Bai Dahi and all those ornaments constituted a part of the trust created by Bai Dahi and that none of the ornaments had belonged to Bai Parwatis estate and therefore the ornaments worth Rs. 8 0 could not be shown as being a part of the trust created by Parvati. This dispute was considered by the Assistant Charity Commissioner Baroda. He decided by his order dated 25-2-1955 that each of the two sisters was possessed of ornaments worth Rs. 8 0 and that the ornaments worth Rs. 8 0 formed a part of the trust created by Parvati and that Dahi was not possessed of ornaments worth Rs. 16 0 and consequently the trust created by Bai Dahi did not possess ornaments worth Rs. 16 0 The result of this order was that the objection raised by the Respondents Nos. 8 0 formed a part of the trust created by Parvati and that Dahi was not possessed of ornaments worth Rs. 16 0 and consequently the trust created by Bai Dahi did not possess ornaments worth Rs. 16 0 The result of this order was that the objection raised by the Respondents Nos. 1 and 2 came to be dismissed and the statements made by the two appellants in their respective applications that each trust possessed ornaments worth Rs. 8 3 were upheld. The two respondents felt aggrieved by this decision of the Assistant Charity Commissioner and preferred an appeal to the Charity Commissioner under sec. 70 of the Bombay Public Trust Act 1950 The appeal was preferred only from the proceeding relating to the trust created by Parvati. The respondents did not prefer an appeal from the order; passed in the proceeding relating to the trust of Bai Dahi. The matter was referred by the Charity Commissioner to the Deputy Charity Commissioner. The appeal came up for hearing before the latter on 16-6-1955. On that day the two respondents were absent but the two appellants were present. Because the two respondents were absent the Deputy Charity Commissioner dismissed the appeal for default of appearance of Respondents Nos. 1 and 2 with costs. Aggrieved by this decision the Respondents Nos. 1 and 2 made an application under sec. 72 of the Bombay Public Trusts Act 1950 to the District Court at Baroda and prayed that the order of the Deputy Charily Commissioner be set aside and that it be held that the trust created by Parvati did not possess ornaments worth Rs. 8 0 but that the same belonged to the trust created by Dahi. The learned District Judge upheld that contention and he held that Bai Parvati had not left to the trust ornaments worth Rs. 8 0 and that all the ornaments worth Rs. 16 0 which the trustees had come into possession belonged to the estate of Bai Dahi and consequently formed a part of the trust created by Dahi. It is from this order that the present appeal has been preferred by the two common trustees of the two trusts under sec. 72 sub-sec. (4) of the Bombay Public Trusts Act 1950 (hereafter called the Act ). ( 2 ) MR. Oza the learned Advocate for the two appellants raised three contentions in this Court. It is from this order that the present appeal has been preferred by the two common trustees of the two trusts under sec. 72 sub-sec. (4) of the Bombay Public Trusts Act 1950 (hereafter called the Act ). ( 2 ) MR. Oza the learned Advocate for the two appellants raised three contentions in this Court. His first contention was that the application under sec. 72 of the Act challenging the order passed by the Deputy Charity Commissioner was not maintainable under sec. 72 (3) of the Act in the District Court. His second contention was that the contention now sought be raised by the two respondents was barred by the principle of res judicata inasmuch as those two respondents had not preferred an appeal from the decision given by the Assistant Charity Commissioner in the proceeding relating to the trust of Bai Dahi viz. that that trust possessed ornaments only worth Rs. 8 0 and not Rs. 16 0 is third contention was that the decision of the learned District Judge that the trust of Bai Parvati did not possess ornaments worth Rs. 8 0 was wrong on the merits and that he should have held that that trust possessed those ornaments and that Bai Dahis trust did not possess ornaments worth Rs. 16 0 At the beginning of his arguments Mr. Oza had also mentioned a fourth point but he did not choose to address us on that subject at all. That fourth point was that the appeal to the Charity Commissioner was bad for non-joinder of the other three trustees who were co-trustees with the present appellants in the trust created by Parvati. ( 3 ) SO far as the first point is concerned the argument is based upon the language of sec. 72 (1) of the Act. That sub-section is as follows:any person aggrieved by the decision of the Charity Commissioner under sections 40 41 70 or 70a or on the questions whether a trust exists and whether such trust is a public trust or whether any property is the property of such trust may within sixty days from the date of the decision apply to the court to set aside the said decision. ( 4 ) ANALYSING the section it appears that the following ingredients must be satisfied in order that an application under it may be made: (I) That there must be a decision of the Charity Commissioner; (ii) That there must be a person aggrieved by that decision; (iii) That decision must be under one of the four sections mentioned therein namely secs. 40 41 70 or 70-A; (iv) of the decision must be on one of the two questions mentioned in the section namely the question whether a trust exists and whether such trust is a public trust or whether any property is the property of such trust. ( 5 ) THE contention of Mr. Oza is that having regard to the facts of the present case there was no decision of the Deputy Charity Commissioner under any of the aforesaid four sections nor was there any decision on any of the two questions mentioned in sec. 72 (1 ). There is no dispute that no decision was given by the Deputy Charity Commissioner either under secs. 40 41 or 70a. However there is a dispute as to whether a decision under sec. 70 was or was not given. There is no dispute that no question was raised in the proceedings before the Deputy Charity Commissioner as to whether a trust existed and whether such trust was a public trust. But there is a dispute between the parties as to whether the question as to whether any property is the property of such trust was raised or not. Therefore the point raised by Mr. Oza has to be decided with reference to the question as to whether there was or was not a decision under sec. 70 or whether there was or was not a decision on the question whether any property was the property of a trust. The contention of Mr. Oza was that the Deputy Charity Commissioner had neither given a decision under sec. 70 nor had he given any decision on the question whether any property was the property of a trust. His contention was that the appeal was disposed of by the Deputy Charity Commissioner for default of appearance and that therefore the appeal was disposed of without the Deputy Charity Commissioner having given any decision as to whether the ornaments in question did or did not belong to the trust created by Parvati. Mr. His contention was that the appeal was disposed of by the Deputy Charity Commissioner for default of appearance and that therefore the appeal was disposed of without the Deputy Charity Commissioner having given any decision as to whether the ornaments in question did or did not belong to the trust created by Parvati. Mr. Oza drew our attention to sub-sec. (3) of sec. 70 which mentions the various orders which could be passed by a Charity Commissioner in appeal and he contended that the power of dismissal of an appeal for default of appearance was not mentioned therein and consequently it could not be stated that there was any decision given by the Charity Commissioner under sec. 70 of the Act. Therefore the contention was that in the present case the Deputy Charity Commissioner had not given any decision under sec. 70 and consequently the learned District Judge had no jurisdiction to entertain under sec. 72 of the Act the dispute whether the ornaments worth Rs. 8 0 were part of the trust created by Parvati. ( 6 ) MR. Oza contended that the right of making an application was given to an aggrieved party by sec. 72 of the Act only and that therefore that right could be exercised by a party only if the conditions mentioned in that section were satisfied and as in the present case those conditions were not satisfied the application under sec. 72 was not tenable. ( 7 ) THE question which requires to be answered is whether the order passed by the Deputy Charity Commissioner dismissing the appeal for default of appearance does or does not come within the purview of the expression the decision of the Charity Commissioner under sec. 70 or on the question. . . whether any. property is the property of such trust. ( 8 ) IN order to examine the validity of the submissions of Mr. Oza it is necessary to examine the provisions of sec. 70. Sub-sec. (1) provides for an appeal being preferred to the Charity Commissioner and mentions the various findings or orders which can form the subject-matter of an appeal to him. One of the findings which can be challenged under this sub-section is a finding under sec. (2 ). A reference to sec. 70. Sub-sec. (1) provides for an appeal being preferred to the Charity Commissioner and mentions the various findings or orders which can form the subject-matter of an appeal to him. One of the findings which can be challenged under this sub-section is a finding under sec. (2 ). A reference to sec. (2) will show this that section empowers the Assistant Charity Commissioner record his findings on the matters mentioned in section 19 and a reference to sec. 19 shows that one of the matters which is referred to therein is the determination of the question as to whether any property is the property of a trust. Therefore there is no doubt that an appeal is competent to the Charity Commissioner under sec. 70 (1) of the Act if there is a finding under sec. 19. Sub-sec. (2) of sec. 70 provides for the period of limitation for preferring an appeal. Then comes sub-sec. (3) which mentions the powers which a Charity Commissioner may exercise in dealing with an appeal preferred under sub-sec. (1 ). That sub-section is in the following terms: the Charity Commissioner may after he2ring the appellant or any person appearing on his behalf for reasons to be recorded in writing either annul reverse modify or confirm the finding or the order appealed against or he may direct the Deputy or Assistant Charity Commissioner to make further inquiry or to take such additional evidence as he may think necessary or he may himself take such additional evidence ( 9 ) THE contention of Mr. Oza was that the order which was actually passed by the Deputy Charity Commissioner was not one of the kinds of orders mentioned in this sub-section. He contended that the actual order was neither one of annulment reversal modification or confirmation of the finding recorded by the Assistant Commissioner nor had the Deputy Charity Commissioner directed the Assistant Charity Commissioner to make further enquiry or to take additional evidence. Therefore the contention was that the order of dismissal was not one under sub-sec. (3) of sec. 70. Mr. Ozas contention was that the order which was passed was purely one under Order 41 Rule 17 of the Civil Procedure Code. ( 10 ) ON the other hand the contention of Mr. Therefore the contention was that the order of dismissal was not one under sub-sec. (3) of sec. 70. Mr. Ozas contention was that the order which was passed was purely one under Order 41 Rule 17 of the Civil Procedure Code. ( 10 ) ON the other hand the contention of Mr. Patel was that the Deputy Charity Commissioner had no power to pass an order under Order 41 Rule 17 of the Civil Procedure Code and the only order which he could pass was one under sec. 70. ( 11 ) SEC. 76 of the Act provides that the Civil Procedure Code shall apply to all proceedings before the Court under the Act. The term Court has been defined in sec. 2 sub-sec. (4) of the Act and the definition states that Court means in the Greater Bombay the City Civil Court and elsewhere the District Court. Therefore it is quite clear that the Civil Procedure Code applies only to proceedings before the District Court and not before the Charity Commissioner. Mr. Patel drew our attention to sec. 73 of the Act which states that the officers acting under the Act shall have certain specific powers under the Civil Procedure Code on certain specified matters. These do not include the power of dismissing a proceeding or an appeal for default of appearance. Mr. Oza was not able to draw our attention to any other provision of the Act applying Civil Procedure Code to proceedings before the Charity Commissioner. On the contrary the provisions of sec. 73 by implication show that the whole of the Code of Civil Procedure is not applicable to proceedings before these officers and that Code only applies to certain specific matters. That being the position in our judgment it is quite clear that Order 41 Rule 17 of the Civil Procedure Code is not applicable to proceedings before the Charity Commissioner ( 12 ) THIS raises a further question as to whether the Deputy Charity Commissioner has or has not an inherent power of dismissing an appeal for default of appearance. Mr. Ozas contention is that every Tribunal has such an inherent power. However this contention is negatived by a decision of the Bombay High Court in the case of Kallappa Joteppa Ajur v. Murigeppa Rudrappa Gugwsd reported in 57 Bombay Law Reporter 178. Mr. Ozas contention is that every Tribunal has such an inherent power. However this contention is negatived by a decision of the Bombay High Court in the case of Kallappa Joteppa Ajur v. Murigeppa Rudrappa Gugwsd reported in 57 Bombay Law Reporter 178. in this case Their Lordships had to consider whether an order of dismissal made in an appeal preferred under sec. 75 of the Bombay Tenancy and Agricultural Lands Act was valid. Sec. 74 of the Tenancy Act enacts that to such appeals the provisions of Chapter XIII of the Bombay Land Revenue Code 1879 applies and the material section in that Chapter is sec. 209. The substance of that section has been set out in the report at pages 178 and 179 We have ourselves looked into the language of sec. 209. In substance the language of that section is the same as the language used in sub-sec. (3) of sec. 70 The powers therefore which are conferred upon the appellate Court exercising power under sec. 74 of the Bombay Tenancy and Agricultural Lands Act are the same as the powers conferred upon the Deputy Charity Commissioner under sec. 70 of the Act. Having regard to the aforesaid language Their Lordships came to the conclusion that the appellate authority in that case had no power of dismissing an appeal for default of appearance but that it was its duty to decide the appeal on merits even if the appellant. was not present on the date of the hearing of the appeal. Then turning to the question as to whether an appellate authority has or has not any inherent power of dismissing an appeal for default. Their Lordships held as follows:it is sometimes forgotten that powers to dismiss appeals for default are not powers which are inherent in a tribunal. It is precisely because they are not inherent that the Civil Procedure Code has made special provision for dismissal of appeals for default. ( 13 ) UNDER the circumstances we are not in a position to uphold the contention of Mr. Oza that either the Civil Procedure Code applies to appeal proceedings before the Charity Commissioner or that that officer has an inherent power of dismissing an appeal for default. In our judgment the Deputy Charity Commissioner has no such power and it is his duty to decide the matter on the materials before him. Oza that either the Civil Procedure Code applies to appeal proceedings before the Charity Commissioner or that that officer has an inherent power of dismissing an appeal for default. In our judgment the Deputy Charity Commissioner has no such power and it is his duty to decide the matter on the materials before him. ( 14 ) IT is in the light of the above legal position that the expression used in sec. 72 of the Act on which Mr. Oza relies has got to be construed. The expression which is to be construed is the decision of the Deputy Charity Commissioner, under sec. 70 or on the question whether any property is the property of such trust. Prima facie Mr. Oza appears to be right that no decision under sec. 70 has been recorded inasmuch as sub-sec. (3) of sec. 70 does riot state in specific terms that an appeal may be dismissed for default. But still the question for consideration is whether the order passed by the Deputy Charity Commissioner cannot be regarded to be a decision on the question whether any property is the property of such trust. Mr. Ozas contention is that the decision of the Deputy Charity Commissioner is not on merits and therefore it cannot be said to he a decision on the aforesaid question. But in our judgment it will not be proper to equate the aforesaid expression decision on the question whether a trust exists and whether such trust is a public trust or whether any property is the property of such trust with the expression decision on merits. What we have got to look for is not whether an actual decision has been given whether a property is the property of any trust but whether in effect and in substance a decision of the aforesaid type has come to be recorded by the Deputy Charity Commissioner. Now having regard to the fact that the Deputy Charity Commissioner dismissed the appeal for default it is quite clear to us that though he has not actually decided that the property was the property of Parwatis trust in effect and in substance that is the decision which has come to be recorded. If he had the power of dismissing an appeal for default of appearance the matter might have been different. If he had the power of dismissing an appeal for default of appearance the matter might have been different. However it is not necessary for us to examine as to what the effect of such an order then would have been. But if the law does not give the Deputy Charity Commissioner the power of dismissal for default but obliges him to decide the dispute irrespective of the appearance of the parties and if in breach of such an obligation the Deputy Charity Commissioner does happen to pass an order of dismissal then it is quite clear that the order stands on a much worse footing than if an actual decision had been given on merits. Under the circumstances in our judgment it will not be proper to give a narrow restricted and literal meeting to the aforesaid expression. In our judgment the expression must be construed in such a manner as to harmonize with the object which the section has in view. The object of the section obviously is to get the matters referred to therein ultimately decided if the parties so choose by a Civil Court and not by the Commissioner. The intention is quite clear that the decision of a Commissioner on the matters referred to in the section should not be given finality if the matters are carried to the Civil Courts. Under the circumstances if in breach of his duty the Commissioner dismisses an appeal he must be regarded as having constructively decided the question involved in the appeal. If this view is not upheld it is obvious that injustice will be done to the appellant and an absurd result would follow. An order of the Commissioner dismissing an appeal for default would have the seal of finality though his order on merits can never have had such a seal and the Commissioner will be able to impress his decision with that seal by committing a breach of his statutory duty. In that view of the matter in our judgment the order passed by the Deputy Charity Commissioner must be regarded to be a decision on the question whether the property was or was not the property of the trust of Parvati. Therefore in our judgment the application under sec. 72 of the Act was maintainable. ( 15 ) [ The rest of the judgment is not material for these reports. ] appeal dismissed. .