1. The petitioner and another person were judgment-debtors. The decree passed against them was put into execution and some property was sold. The other judgment-debtor put in an application for setting aside the sale and also an application for relief under the Bengal Money-Lenders Act. These matters were the subject-matters of Miscellaneous Case No. 19 and Miscellaneous Case No. 42 of 1941 before the learned second Subordinate Judge at Howrah. The petitioner also filed an application under Order 21, Rule 90, Civil P.C., praying that the sale be set aside on the usual grounds. The applications of the other judgment-debtors were withdrawn and thereupon the Subordinate Judge passed an order confirming the sale and dismissing the execution case on full satisfaction without dealing with the petitioner's application under Order 21, Rule 90. The petitioner moved the Subordinate Judge and asked that his application may be dealt with and that the order confirming the same may be set aside. The learned Subordinate Judge refused the application and the petitioner has moved this Court in its revisional jurisdiction for relief.
2. The petitioner points out that the Court below acted with material irregularity in the exercise of its jurisdiction by confirming the sale without disposing of his application under Order 21, Rule 90. He refers us to the provisions of Order 21, Rule 92 which says this:
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.
3. He points out, and in our opinion he points out rightly, that where there is an application made under Order 21, Rule 90 the Court cannot confirm the sale without disallowing that application. In the present case, the Court has confirmed the sale without in any way disposing of that application. There can be no doubt that the Court has acted with material irregularity in the exercise of its jurisdiction and indeed the learned advocate on behalf of the opposite party does not seriously contest this. He says, however, that no application under Section 115, Civil P.C., lies to this Court inasmuch as the order of the learned Subordinate Judge confirming the sale is one passed under Order 21, Rule 92, Civil P.C., and is appealable. He refers us to the provisions of Order 43, Rule 1(j) and argues that as the order is appealable this Court cannot deal with it in its revisional jurisdiction. Now, Order 43, Rule 1(j) says this : 'An appeal shall lie from an order under Rule 72 or Rule 92 of Order 21 setting aside or refusing to set aside a sale.' In the present case the Court has not refused to set aside the sale. It has merely confirmed the sale without in any way dealing with the application to have the sale set aside. Indeed, the Court when it passed the order confirming the sale was oblivious of the fact that there was such an application pending. Refusal is something positive; it is not a mere abstention. The refusal by a Court to do a thing presupposes that the Court has taken cognizance of a prayer made to it to do that thing. Here there was no such refusal but a mere confirmation. It is the refusal to set aside the sale that is made appealable and not a mere order confirming the sale. The order passed in this case is therefore not one which falls within the purview of Order 43, Rule 1(j).
4. We have been referred by the learned advocate for the opposite party to a number of cases amongst which are Ansarilal v. Bhim Sankar Dutta Tewari : AIR1929Cal407 , Basaratulla Mean v. Reazuddin Mean ('26) 13 A.I.R. 1926 Cal. 773 and Nanhelal v. Umrao Singh . All we have to say regarding these cases is that they dealt with facts which are entirely different from those of the present one and there is nothing laid down in these cases which would compel us to hold that the present order is one with which this Court cannot deal in the exercise of its revisional jurisdiction. We are therefore of opinion that this rule must be made absolute. The order confirming the sale is set aside and the learned Subordinate Judge is direoted to deal with the application of the petitioner under Order 21, Rule 90 in accordance with law. The costs of this rule shall abide the result of the application under Order 21, Rule 90--the hearing-fee in this Court being assessed at two gold mohurs. Let the counter affidavit filed in Court at the hearing be kept on the record.
5. I agree.