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Velappan and ors. Vs. Sahasranamam and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberCivil Revn. Petn. No. 3525 of 1976
Judge
Reported inAIR1980Ker12
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rules 90 and 92 - Order 43, Rule 1
AppellantVelappan and ors.
RespondentSahasranamam and ors.
Appellant Advocate P.N.K. Achan,; K. Vijayan and; N.N. Sugunapalan, Adv
Respondent Advocate T.S. Venkiteswara Iyer and; P.K. Balasubramanyan, Advs.
DispositionPetition dismissed
Cases ReferredMunikrishna v. S.K. Ramaswami
Excerpt:
.....fresh steps to some of respondent an appeal lie - appeal lie from orders mentioned in order 43 rule1 - appeal lie from order setting aside or refusing to set aside sale - only by disallowing application the court refuses to set aside sale under order 21 rule 92 even though dismissal of application for default result in confirmation of sale - order setting aside sale can be passed only after giving notice to all persons affected thereby - order passed before giving notice to all persons affected by order on application on merits - held, order of dismissal for default not appealable under order 43 rule 1. - - 2. the question whether an appeal will lie from an order like the one passed by the execution court in this case has come up for consideration in a number of cases. this..........there is no distinction in principle between an order passed on an application under order 21, rule 90 dismissing it for default either for non-appearance of one or for non-appearance of both the parties. it is the disallowing of the application made under order 21, rule 90 which corresponds to the order refusing to set aside a sale within the meaning of order 43, rule 1, clause (j). the fact that a distinct order has not been recorded confirming the sale does not alter the character of the order disallowing an application under order 21, rule 90 which is appealable by reason of the provisions of order 43, rule 1, clause (j).' in nirendra nath banerjee v. birendra nath chatterjee (air 1942 cal 480) it is said: 'the order confirming the sale without in any way dealing with the.....
Judgment:
ORDER

K.K. Narendran, J.

1. The question that arises for consideration in this Civil Revision Petition is whether, from an order dismissing an Application to set aside a sale for default, the default being not taking fresh steps to some of the respondents, an appeal will lie. The petitioners in F. A. No. 840 of 1975 filed in E. P. No. 459 of 1974 of the Munsif's Court, Palghat are the petitioners in this Civil Revision Petition. The application to set aside the sale filed by the petitioners under Order XXI Rule 90 of the C. P. C. was dismissed by the execution court for not taking fresh steps to some of the respondents. From the above order of dismissal for default the petitioners filed an appeal before the District Court, Palghat which was ultimately disposed of by the Sub Court, Palghat. The learned Sub Judge dismissed the appeal holding that no appeal will lie against an order of dismissal for default of an application to set aside a sale under Order XXI Rule 90. It is the above judgment of the learned Subordinate Judge that has been challenged by the petitioners in this Civil Revision Petition.

2. The question whether an appeal will lie from an order like the one passed by the execution court in this case has come up for consideration in a number of cases. There is really a conflict of views also on this point. In Basaratulla Mean v. Reazuddin Mean (AIR 1926 Cal 773) Page J. has said:

'I am dispossed to think that an order dismissing an application to set aside 3 sale merely on default of appearance of the parties cannot be regarded as in any way confirming the sale. No doubt, if the Court not only dismisses the application but orders that the sale be confirmed, such an order is within Rule 92, and is appealable under Order 43, Rule 1 (j).' In the above decision it is further said: 'On the other hand, 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. Such an order, in my opinion, is not appealable under Order 43, Rule 1 (j). Whether an appeal lies from an order or not in each case must depend upon the construction of the order, In my opinion, where an order is passed dismissing an application to set aside a sale merely on default of appearance by the parties and not on the merits, the applicant is not debarred from making a fresh application for the same purpose, if he prefers the application within the time allowed by the statute of limitation, and the application otherwise is duly made according to the requirements of the law.'

In the above case, the reason for dismissal of the execution application was the non-appearance of the parties on the date when the case was posted. One of the questions that arose for consideration in the case was whether an order dismissing for default an application to set aside a sale under Order XXI Rule 90 is an order refusing to set aside a sale under Order XXI Rule 92. It is also to be noted that in Basanta Kumar Adak v. Khirode Chandra (AIR 1928 Cal 25) Page J. distinguished the earlier decision in Basaratulla's case and held:

'The position is entirely different where the application under Order 21, Rule 90, is dismissed either on the merits, or when the applicant does not appear but the opposite party appears and is ready to contest the application. In either of those circumstances, in my opinion, the order dismissing the application to set aside a sale is an order refusing to set aside a sale within Order 43, Rule 1 (j) and in either case the order confirming the sale under Order 21, Rule 92 is ancillary to and follows as of course from the order dismissing the application to set the sale aside. In my opinion, the orders of the 18th Dec. 1926, by which the application to set aside the sale was dismissed and the sale was confirmed were subject to appeal.'

In Ansarali v. Bhim Sankar (AIR 1929 Cal 407 (2) (408)) an application under Order XXI Rule 90 was dismissed for non-appearance of both parties on the dayfixed for hearing. Though the application was dismissed for default no formal order confirming the sale was made. The Court held :

'When no formal order has been recorded confirming the sale and the application under Order 21, Rule 90 has been dismissed for default for non-appearance of both parties to the proceeding, the order of dismissal passed under those circumstances is open to appeal. There is no distinction in principle between an order passed on an application under Order 21, Rule 90 dismissing it for default either for non-appearance of one or for non-appearance of both the parties. It is the disallowing of the application made under Order 21, Rule 90 which corresponds to the order refusing to set aside a sale within the meaning of Order 43, Rule 1, Clause (j). The fact that a distinct order has not been recorded confirming the sale does not alter the character of the order disallowing an application under Order 21, Rule 90 which is appealable by reason of the provisions of Order 43, Rule 1, Clause (j).' In Nirendra Nath Banerjee v. Birendra Nath Chatterjee (AIR 1942 Cal 480) it is said:

'The order confirming the sale without in any way dealing with the application under Order 21, Rule 90 does not come within the purview of Order 43, Rule 1 (j) under which, it is the refusal to set aside the sale that is made appealable and not a mere order confirming the sale.'

In the above case, though the petitioner judgment-debtor had filed an application to set aside the sale under Order XXI Rule 90 of the C. P. C., without disposing of the same the execution court confirmed the sale. The Calcutta High Court interfered in revision, set aside the sale and directed the execution court to consider the application filed under Order XXI Rule 90 holding that the confirmation of the sale without in any way disposing of the application has resulted in a material irregularity in the exercise of jurisdiction by the execution court. Though Basaratulla's case was also referred to, the court distinguished the same on facts. In Bimla Devi v. Aghore Chandra (AIR 1975 Cal 80) a Full Bench held:

'An appeal lies under Order 43, Rule 1 (j) from an order dismissing for default an application under Order 21, Rule 90. There is no distinction in principle between an order passed on an application under Order 21, Rule 90 dismissing it for default either for the non-appearance of one ofthe parties or for the non-appearance of both the parties.'

In the above case, an application under Order XXI Rule 90 was dismissed for default and the sale was later confirmed. The judgment-debtor then filed an application under Section 151, C. P. C., against the order of dismissal for default. This was allowed, the dismissal order set aside and the application under Order XXI Rule 90 restored to file. The above order was challenged in a revision before the High Court. As has been stated in para 2 of the judgment, the point that arose for consideration was the maintainability of an application under Section 151 from an order of dismissal for default of an application under Order XXI Rule 90. The High Court held that against the order of dismissal for default an application under Section 151 will lie to the same court even though there is an appeal against the order under Order XLIII Rule 1 (j) as the appeal will be only an appeal in name. The Madras High Court in Munikrishna v. S.K. Ramaswami (AIR 1969 Mad 389) held:

'There is no difficulty in construing the words 'setting aside a sale' which occur in Order 43, Rule 1 (j). The difficulty arises only in construing the words 'refusing to set aside a sale'. It is clear, however, that these words must correspond to the following words in Order 21, Rule 92, 'whera such application is made and disallowed.' The words, 'where such application is made and disallowed' are, however apt and wide enough to cover a case of the disallowance of the application under Order 21, Rule 89, Rule 90 or Rule 91, for whatever cause, whether on merits or for default or for any other reason. Otherwise, it would mean that there is a lacuna in Order 21, Rule 92, itself. If those words are not to apply to a case where an application is dismissed for default, and are to be confined to a case where the application is disallowed on merits, it would mean that Order 21, Rule 92 dies not provide for a case where an application under Order 21, Rule 89, Rule 90 or Rule 91 is dismissed for default. The clause, 'where no application is made under Rule 89, Rule 90 or Rule 91' cannot possibly apply to case where an application is filed but is dismissed for default. If we hold that such a contingency is not covered by the clause 'where such application is made and disallowed', it would mean that Order 21, Rule 92 does not provide for such a contingency. Yet it is obvious that even in such a contingency the Court should confirm the sale. It is, therefore, clear that the clause in Order 21,Rule 92, 'where such an application is made and disallowed' will cover not merely a case where an application is disallowed on merits, but also covers a case where the application is disallowed for any other reason, such as for default.' In Nathu Prasad v. Singhai Kapurchand (AIR 1976 Madh Pra 136 (FB)) it is said that an appeal will lie under Order XLIII Rule 1 (c) against an order of dismissal for default of a petition under Order IX Rule 9, C. P. C. Order XLIII Rule 1 (c) reads: '(c) an order under Rule 9 of Order IX rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit;'

But this decision is not an authority for the position that an appeal will lie against a similar order of dismissal for default of a petition to set aside sale passed under Order XXI Rule 92 because of the difference in the wordings of Rules 1 (c) and 1 (j) of Order XLIII. In Gopilal v. Sitaram (AIR 1968 Madh Pra 196) following the decision of the Calcutta High Court in Basaratulla's case (AIR 1926 Cal 773) a Bench of the Madhya Pradesh High Court held:

'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 (j) 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 Cal 25 (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 buton 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).'

3. Order 21, Rule 92, Civil P. C., reads: '92. Sale when to become absolute or be set aside -- (1) Where no application is made under Rule 89, Rule 90 or Rule 91, or where such application is made and disallowed, the Court shall make an order confirming the sale, and thereupon the sale shall become absolute;

Provided that before confirming the sale the Court shall satisfy itself that the amount paid under Rule 85 for the purchase of general stamp paper for the certificate under Rule 94 is sufficient for the purpose in accordance with the rate in force at the time of the confirmation and may, notwithstanding anything contained in Rule 86, give the purchaser such time as it thinks fit for making good any deficiency.

(2) Where such application is made and allowed, and where, in the case of an application under Rule 89, the deposit required by that rule is made within thirty days from the date of the sale, and in case where the amount deposited has become deficient owing to any cause not within the control of the depositor such deficiency has been made good within such time as may be fixed by the Court, the Court shall make an order setting aside the sale:

Provided that no order shall be made unless notice of the application has been given to all persons affected thereby,

(3) No suit to set aside an order made under this rule shall be brought by any person against whom such order is made.' Order XLIII Rule 1 (j) of the C. P. C. reads:

'1. Appeals from orders. -- An appeal shall He from the following orders under the provisions of Section 104, namely:--

(a) to (i) ... ... ... ... ... ... ... ... ... ...

(j) an order under Rule 72 or Rule 92 of Order XXI setting aside or refusing to setaside a sale;....'

It is to be noted that only from orders mentioned in Order XLIII Rule 1 an appeal will lie. As far as the orders passed under Order XXI Rule 92 are concerned, it is Clause (j) of Rule 1 of Order XLIII that governs the appeals therefrom. It is clear from Clause (j) that an appeal will lie from an order setting aside or refusing to set aside a sale. Though the application in question which was dismissed for default was an application to set aside a sale filed under Order XXI Rule 90, C. P. C., it was not disposed of on the merits. It was dismissed for default. The 'allowing' or 'disallowing' of an application mentioned in Rule 92 can only be a disposal on the merits after notice to the parties entitled to notice, The dismissal of the application filed under Rule 90 for' not taking fresh steps cannot be a 'disallowing' of the application under Rule 92. Only by disallowing the application the Court refuses to set aside sale under Rule 92 even though the dismissal of the application for default will also result in the confirmation of the sale. But it is the refusal to set aside sale which is made appealable. So, it cannot be said that the order impugned, namely, the order dismissing the application for default is one refusing to set aside a sale.

An order refusing to set aside a sale or an order setting aside a sale can be passed only on the merits. In a dismissal for default the contentions raised in the application are not even adverted to by the Court. Not only that, as per the proviso to Order XXI Rule 92 (2), an order setting aside a sale can be passed only after giving notice to all persons affected thereby. So, it goes without saying that an application to set aside a sale under Order XXI Rule 90 can be disposed of on the merits only after all the persons affected, are served with notice. In this case, the dismissal was for default in not taking fresh steps to some of the counter-petitioners in the application to set aside the sale. So, the order in question was passed before giving notice to all the persons who will be affected by an order on the application on the merits. So, it cannot be said that the order of dismissal for default is one which is refusing to set aside a sale under Order XXI Rule 92 which is made appealable under Order XLIII Rule 1 (j). The decisions of the Calcutta High Court in Basant Kumar v. Khirode Chandra (AIR 1928 Cal 25), Ansarali v.Bhim Sankar (AIR 1929 Cal 407 (2)), Bimla Devi v. Aghore Chandra (AIR 1975 Cal 80 (FB)) and the decision of the Madras High Court in Munikrishna v. S.K. Ramaswami (AIR 1969 Mad 389), with due respect, I venture to state, have not laid down the correct law on the point, 4. In this view of the matter, the judgment of the learned Subordinate Judge does not call for any interference in revision. The Civil Revision Petition is dismissed. There will be no order as to costs.


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