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Kedar Nath Vs. Purushottam Das Banarsi Das - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 771 of 1962
Judge
Reported inAIR1966All188
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 - Order 21, Rules 90 and 92 - Order 43, Rule 1
AppellantKedar Nath
RespondentPurushottam Das Banarsi Das
Appellant AdvocateV.B.L. Srivastava, Adv.
Respondent AdvocateHari Swarup, Adv.
DispositionApplication dismissed
Excerpt:
civil - appealable order - rules 90 and 92 of order 21, order 43 (1) (i) and section 115 of code of civil procedure, 1908 - appeal lies against an order dismissing an application under order 21 rule 90 refusing to set aside sale - revision not allowed. - - the valuation of the suit in which the decree was passed has not clearly come on the record. it will thus be safe for this court not to exercise the revisional jurisdiction if the impugned order is appealable......(j) had been worded differently to give a right of appeal against the order setting aside the sale or confirming it, no two opinions were possible.4. it shall, however, be found that the words used in clause (j) are slightly different to the words used in the order contemplated by order xxl rule 92 (1), c. p. c. this sub-rule provides that:'where no application is made under rule 89, rule 90 or rule 91, or where such an application is made and disallowed, the court shall make an order confirming the sale and thereupon the sale shall become absolute.'the decree-holder, or any person entitled to share in a rateable distribution of assets, or whose interests are affected by the sale, can apply under order xxi, rule 90 (1), c. p. c. to have the sale set aside. the presentation and.....
Judgment:
ORDER

D.S. Mathur, J.

1. This is a revision under Section 115, C. P. C. by Keclar Nath, judgment-debtor, against the order, dated 7-7-1962 of the Civil Judge of Oral dismissing his objection (hereinafter to be referred to as 'application') under Order XXI, Rule 90, C. P C. on the ground that the compliance of the proviso had not been made within the period of limitation.

2. An order or decree can be challenged in a revision under Section 115, C. P. C. only if no appeal lies to the High Court. As a rule of practice the High Court refused to exercise the revisional jurisdiction where the order or decree is appealable leaving it open to the party to challenge it in appeal. The valuation of the suit in which the decree was passed has not clearly come on the record. An application of the judgment-debtor can suggest that the valuation is less than Rs. 8,333 while another application of the decree-holder would suggest that the valuation was above Rs. 5,000, The number ofthe suit is 67 of 1948. The possibility of the appeal against the order lying to the High Court cannot, therefore, be excluded. It will thus be safe for this Court not to exercise the revisional jurisdiction if the impugned order is appealable. Even though the period of limitation for filing the appeal has expired, it shall be open to the applicant to make an application under Section 5 of the Limitation Act for condonation of delay, all the more, when it appears that Clause (j) of Order XLIII, Rule 1, C. P. C. is capable of more than one interpretation.

3. Appealable orders are detailed in Order XLIII, Rule 1, C. P. C., Clause (j) thereof refers to an order under Rule 72 or Rule 92 of Order XXI setting aside or refusing to set aside a sale. In case the words 'setting aside or refusing to set aside a sale' were not incorporated in this clause it could be said that the impugned order, namely, mere dismissal of the application under Order XXI, Rule 90, was not appealable though an appeal would lie against the order confirming the sale. Similarly, if Clause (j) had been worded differently to give a right of appeal against the order setting aside the sale or confirming it, no two opinions were possible.

4. It shall, however, be found that the words used in Clause (j) are slightly different to the words used in the order contemplated by Order XXL Rule 92 (1), C. P. C. This sub-rule provides that:

'Where no application is made under Rule 89, Rule 90 or Rule 91, or where such an application is made and disallowed, the Court shall make an order confirming the sale and thereupon the sale shall become absolute.'

The decree-holder, or any person entitled to share in a rateable distribution of assets, or whose interests are affected by the sale, can apply under Order XXI, Rule 90 (1), C. P. C. to have the sale set aside. The presentation and maintainability of such an application are determined by this rule. However, Order XXI, Rule 92 (1) provides that where such an application (objection) is disallowed, the Court shall make an order confirming the sale and thereupon the sale shall become absolute. Rule 92 (1) thus contemplates an order confirming the sale and once such an order is passed the sale becomes absolute. If Rule 92 is strictly construed, it shall be deemed to contemplate an order confirming the sale, and had the words 'setting aside or refusing to set aside a sale' were not used in Clause (j) or Order XLIII, Rule 1, C. P. C., the appeal would lie against the order confirming the sale and not an earlier order disallowing the application under Order XXI, Rule 90, C. P. C. When the legislature considered it necessary to give further particulars of the appealable order covered by Clause (j) all the words used must be given their proper meaning, and it shall have to be held that the order contemplated by Clause (j) is one setting aside a sale as contemplated by Sub-Rule (2) of Rule 92 of Order XXI or an order refusing to set aside a sale as a consequence of which the sale is confirmed and the sale becomes absolute under Sub-rule (1). By implication this order shall be deemed to be under Sub-Rule (1) of Rule 92 of Order XXI, C. P. C. I am thus of opinion that the impugned order dismissing the application under Order XXI, Rule 90, C. P. C. refusing to set aside the sale was appealable under the above clause.

5. The above question, namely the nature of the order which is appealable, does not appear to have been raised before the Allahabad High Court, as from the reported decisions it is evident that there are reported decisions in which both F. A. F. Os. and Civil Revisions have been entertained and in none it was urged that the order was not appealable or was appealable. However, the Madras and Andhra High Courts have expressed the opinion that the order dismissing the application under Order XXI, Rule 90, C. P. C. amounts to refusal to sot aside a sale, and as such is appealable under Clause (i) of Order XLIII, Rule 1, C. P. C., See Sheikh Mastan v. Gubba Atchayya, : AIR1959AP667 and Marudamuthu Mudaliar v. N. K. Venkatrama Ayyar, AIR 1939 Mad 482.

6. As the impugned order is appealable, the revision is either not maintainable or this Court can refuse to exercise the revisional Jurisdiction leaving it open to the aggrieved party to challenge the order in appeal.

7. The revision is hereby dismissed. Costson parties.


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