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Gopilal and anr. Vs. Sitaram and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberLetters Patent Appeal No. 14 of 1966
Judge
Reported inAIR1968MP196
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47, 107, 115 and 151 - Order 21, Rule 21 - Order 43, Rule 1
AppellantGopilal and anr.
RespondentSitaram and ors.
Appellant AdvocateY.S. Dharmadhikari, Adv.
Respondent AdvocateP. Rusia, Adv. for Respondents Nos. 6 to 10 and 5, 12, 13, 15 to 17
DispositionAppeal dismissed
Cases ReferredRampratap v. Triloknath
Excerpt:
- - this stands to reason as a party who has allowed his application to be rejected by default or for non-prosecution cannot really complain that the court has refused to set aside the sale on a prayer being made by him. 9. in the present case, the judgment-debtors followed the right course when they applied to the executing court for restoration of their applications under order 21, rule 90 and section 47 and then preferred a revision petition to this court when they failed in their attempt to have the applications under order 21, rule 90 and section 47 restored......of the orders passed by the district judge dismissing for default of appearance the judgment-debtors applications under order 21, rule 90 and section 47 and in refusing to restore those applications and thus opening a door for further proceedings by the judgment-debtors for having those orders set aside.4. there is considerable force in this complaint. the first question which the learned single judge had to consider was whether the appeal preferred by the judgment-debtors was competent or not. it was only after holding that the appeal was tenable that he could have entered into the merits of the orders passed by the learned district judge. when he held that the appeal was not tenable, it was wholly unnecessary for him to make observations about the merits of the orders passed by.....
Judgment:

Dixit, C.J.

1. The facts and circumstances in which this Letters Patent Appeal under Clause 10 of the Letters Patent against a decision of Tare J. has been filed are that in execution proceedings of a money decree against the respondent-judgment-debtors certain property belonging to the judgment-debtors was sold and purchased by the second appellant Rajaram Thereupon, the judgment-debtors filed applications under Order 21, Rule 90 of the Code of Civil Procedure as also under Section 47 of the Code for setting aside the sale. On 5th February 1965 those applications were dismissed by the executing Court for default of appearance of the judgment-debtors. Thereafter, on the same day the judgment-debtors filed applications for restoration of their applications under Order 21, Rule 90 and Section 47 of the Code of Civil Procedure. These applications were also rejected by the District Judge, Sagar, by an order passed on 11th February 1966. The judgment-debtors then filed a revision petition in this Court which was summarily dismissed on 24th February 1966.

2. The judgment-debtors then preferred an appeal in this Court against the order dated 11th February 1966 of the District Judge refusing to restore the judgment-debtors' applications under Order 21, Rule 90 and Section 47 which had been dismissed earlier for default of appearance. Tare J., who heard the appeal, took the view that in view of the dismissal by this Court on 24th February 1966 of the revision petition filed by the judgment-debtors against the District Judge's order dated 11th February 1966, the appeal preferred by them was not tenable. He observed:

'I might have been inclined to entertain an appeal, but for the revisional order passed by this Court'.

On this view, he dismissed the appeal preferred by the judgment-debtors. In his order dismissing the appeal the learned Single Judge considered the question of the tenability of the appeal with reference to Order 43, Rule 1 (j) and Section 47 of the Code of Civil Procedure He also dealt at length on the question whether the learned District Judge was right in dismissing the judgment-debtors' applications under Order 21, Rule 90 and Section 47 for default of appearance and in refusing to restore those applications. In his opinion, the learned District Judge was not justified in dismissing the objection-petitions for default of appearance or in refusing to restore them.

3. The decree-holder and the auction-purchaser have now preferred this Letters Patent Appeal. They are not aggrieved bythe conclusion of the learned Single Judge dismissing the appeal preferred by the judgment-debtors. Their sole grievance is that having held that the appeal preferred by the judgment-debtors was not tenable, the learned Single Judge was not justified in expressing any opinion on the correctness of the orders passed by the District Judge dismissing for default of appearance the judgment-debtors applications under Order 21, Rule 90 and Section 47 and in refusing to restore those applications and thus opening a door for further proceedings by the judgment-debtors for having those orders set aside.

4. There is considerable force in this complaint. The first question which the learned Single Judge had to consider was whether the appeal preferred by the judgment-debtors was competent or not. It was only after holding that the appeal was tenable that he could have entered into the merits of the orders passed by the learned District Judge. When he held that the appeal was not tenable, it was wholly unnecessary for him to make observations about the merits of the orders passed by the learned District Judge, especially when the correctness of the order dated 11th February 1966 passed by the District Judge was finally settled by the rejection by this Court on 24th February 1966 of the revision petition filed by the judgment-debtors. We have, however, no doubt that if the judgment-debtors, taking advantage of the purposeless observations made by the learned Single Judge, initiate in the lower Court any proceedings for having the orders of the District Judge dismissing the judgment-debtors' objection petitions for default of appearance and refusing to restore those petitions set aside, the Court shall in no way be influenced or overpressed by those observations and bear in mind the fact that the question of the dismissal by the District Judge of the judgment-debtors' objection petitions for default of appearance and his refusal to restore those objections is now concluded by the dismissal by this Court on 24th February 1966 of the revision petition preferred by the judgment-debtors.

5. It, however, seems to us unnecessary to say something about the tenability of the appeal preferred by the judgment-debtor against the order dated 11th February 1966. The view of the learned Single Judge that an appeal against that order would have been competent but for the revisional order passed by this Court is, with all due deference to him, not correct. An order dismissing an application under Order 21. Rule 90 for default of appearance or an order dismissing an application for restoring the original application under Order 21, Rule 90 is not at all appealable either under Section 47 or under Order 43, Rule 1 (j). So far as the tenability of the appeal under Section 47 is concerned, thatto concluded by the decision of the Supreme Court in Keshardeo v. Radha Kishen, AIR 1953 SC 23. That was a case where execution proceedings had been dismissed in default and the decree-holder thereafter applied for restoration. The executing Court allowed the application and restored the proceedings. The Supreme Court held that no appeal lay against the order passed by the executing Court as the order of the executing Court did not relate to execution, discharge or satisfaction of a decree within the ambit of Section 47; the proceedings started by the decree-holder were in their nature collateral to the execution and independent of it. The decision of the Supreme Court was followed by this Court in Kashidhar v. Bhushanlal, Misc. S. A. No. 52 of 1957, D/- 30-1-1959 (MP), and it was held that no appeal under Section 47 of the Code of Civil Procedure was competent against an order of the executing Court dismissing an application filed by the judgment-debtor for restoration of his application under Order 21, Rule 90 dismissed earlier for default of appearance. The view taken by the learned Single Judge in the case of Misc. S. A. No. 52 of 1957, D/- 30-1-1959 (MP) (supra) is in our opinion, correct.

6. No appeal lies under Order 43, Rule 1(j) from an order dismissing an application under Order 21, Rule 90 or an order dismissing an application for restoring the application under Order 21, Rule 90. Under Order 43, Rule 1(j) an appeal lies from an order under Rule 92 of Order 21 'setting aside or refusing to set aside a sale'. Now, when no application is made under Order 21, Rule 90 or where such an application is made and disallowed, the Court is required to make an order confirming the sale. If the application made is allowed, then the Court has to make an order setting aside the sale. When no application is made under Order 21, Rule 90, there is no question of appeal against an order confirming the sale. Clause (j) of Order 43, Rule 1 does not provide for an appeal against an order confirming the sale. Under that clause, an appeal lies against an order under Order 21, Rule 92 setting aside or refusing to set aside a sale. When an application under Order 21, Rule 90 is made, and is dismissed for default or is not pressed by the applicant, it may be taken for the purpose of Rule 92 of Order 21 that it has been disallowed and the result of disallowing is that the sale is confirmed But it cannot be held that when the application is dismissed for default of appearance or when it is not pressed then there is a refusal on the part of the Court to set aside the sale The word 'refusal' means 'a denial or rejection of something demanded or offered' There can be no 'refusal' unless there is a request or demand When, an application under Order 21. Rule 90 is dismissed for default or when it is not pressed, there is no demand on the part of the person applying for setting aside the sale andthe Court is not required to consider whether the sale should be set aside or not. Thus, when an application under Order 21, Rule 90 is dismissed for default of appearance and the sale is confirmed, there is no refusal to set aside the sale and such an order is not appealable under Order 43, Rule 1(j). A fortiori, an order dismissing an application for restoring the application under Order 21, Rule 90 dismissed for default of appearance is also not appealable.

7. On the question whether an appeal lies from order dismissing an application under Order 21, Rule 90 for default or from an order dismissing an application for restoring the application under Order 21, Rule 90, the decisions are conflicting. In Kali Kanta Chuckerbutty v. Shyam Lal, AIR 1917 Cal 815(2) it has been held that the language of Order 43, Rule 1(j) is wide enough to cover a case of an application to have a sale set aside dismissed for default. The reasoning given in this case was that the effect of such an order is to confirm the sale under Rule 92. But, as pointed out earlier, under Clause (j) of Order 43, Rule 1, an appeal lies against an order refusing to set aside a sale and not against an order confirming the sale. This decision was followed in Narendra Nath v. Rakhal Das, AIR 1925 Cal 510 where also it was ruled that the effect of the dismissal of an application under Rule 90 is to confirm the sale under Rule 92 and hence an appeal lies against the order. But in a later case, namely, Basaratulla v. Reazuddin, AIR 1926 Cal 773, it was held that an order of dismissal for default is not a confirmation of the sale and does not preclude the party from making a fresh application and that such an order is not appealable under Order 43, Rule 1(j). In that case Page J. observed that :--

'. . . . .in dismissing the application for default when neither party appears on the case being called for hearing, the Court does not refuse to set aside the sale, but in the absence of the parties refuses to consider whether the sale should be set aside or not.'

Page J. however, reached the conclusion in Basanta Kumar v. Khirode Chandra, AIR 1928 Cal 25 that where a person applies under Order 21. Rule 90 but the application is dismissed for his non-appearance and the opposite party is present and ready to contest, the order dismissing the application is an order under Order 43. Rule 1(j) and is, therefore appealable To us it seems that in principle there is no distinction between an order passed on an application under Order 21, Rule 90 dismissing it for default for non-appearance if one party and an order dismissing it for non-appearance of both the parties. The decision in AIR 1926 Cal 773 (supra) was not followed by the Calcutta High Court in Ansarali v. Bhim Sankar, AIR 1929 Cal 407(2). In that case it was held that when an application under Order 21.Rule 90 is dismissed for default, whether for non-appearance of one or for non-appearance of both the parties, it is disallowed under Rule 92 and that it is the disallowing of the application under Order 21, Rule 90 which corresponds to the order refusing to set aside a sale within the meaning of Order 43, Rule 1(j), and, therefore, such an order is appealable. In our judgment, the expression ''where such an application is made and disallowed' occurring in Rule 92 means that where such an application is made and rejected. But it is not every order of rejection that has been made appealable under Order 43, Rule 1 (i) but only that Order of rejection by which the Court on a demand being made by a person to set aside a sale refuses to set aside the sale. This stands to reason as a party who has allowed his application to be rejected by default or for non-prosecution cannot really complain that the Court has refused to set aside the sale on a prayer being made by him. The Patna High Court has in Rampratap v. Triloknath, AIR 1957 Pat 465, following AIR 1928 Cal25 (supra) and AIR 1929 Cal 407(2) (supra), held that an order dismissing an application under Order 21, Rule 90 for non-prosecution is appealable under Order 43, Rule 1(j), the reason given being that if the application is disposed of on merits and is dismissed, the result is that the sale is confirmed; likewise if the application is dismissed for non-prosecution, the result is the same, namely, that the sale is confirmed. As we have stated earlier, the question of appealability under Order 43, Rule 1(j) does not depend upon whether the order under Order 21, Rule 92 results in the confirmation of the sale but on the fact whether the order is one refusing to set aside the sale or setting aside the sale. It is not necessary to note the decisions of other High Courts which are in similar vein. The reasonings given in these decisions, with all respect to the learned Judges deciding the cases, do not appear to us to be reconcilable with one another. We would respectfully say that Page J. rightly observed in AIR 1926 Cal 773 (supra) that when an application under Order 21, Rule 90 is dismissed for default, the Court does not refuse to set aside the sale. In our view, an order dismissing an application under Order 21, Rule 90 for default or an order dismissing an application for restoring the original application under Order 21. Rule 90 is not appealable under Order 43. Rule 1 (j).

8. It is not that a person whose application under Order 21, Rule 90 is dismissed for default has no remedy. Such a dismissal by the Court is in the exercise of its inherent powers and the application can be restored by the Court in the exercise of its inherent powers. If the Court on being moved to restore such an application refuses to do so, the party has the remedy of coming to the High Court in revision. It is a different question whether in any particular case theHigh Court would, in the exercise of its jurisdiction under Section 115 of the Code of Civil Procedure, interfere with the Order of the executing Court.

9. In the present case, the judgment-debtors followed the right course when they applied to the executing Court for restoration of their applications under Order 21, Rule 90 and Section 47 and then preferred a revision petition to this Court when they failed in their attempt to have the applications under Order 21, Rule 90 and Section 47 restored.

10. For these reasons, this appeal isdismissed. In the circumstances of the case,we leave the parties to bear their own costs.


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