1. This rule is directed against an order of the Court below dated the 14th January 1924, rejecting an application made by the petitioner under Order 9, Rule 4, for restoration of an application which was dismissed for default. The original application was under Order 21, Rule 90 for setting aside a sale on the ground of material irregularity in the publication of sale processes. On the date of hearing neither party appeared and the Court, having disallowed the petitioner's prayer for further time, dismissed the application and confirmed the sate. The petitioner thereupon applied to the learned Subordinate Judge for its restoration. The learned Judge being of opinion that Order 9, Code of Civil Procedure, was not applicable to an application under Order 21, Rule 90 dismissed the petition without entering into its merits.
2. It is argued before us that the view taken by the Court below is wrong and that Order 9 is applicable to an application under Order 21, Rule 90. This question has been before this Court on many occasions and there has been a divergence of opinion on the point. There is a class of cases, such as the cases of Diljanminha Bibi v. Hemanta Kumar Roy (1915) 19 C.W.N. 758, Bhutan Bahari Nag v. Direndra Nath Banerji (1916) 20 C.W.N. 1203 and Bepin Behari Saha v. Abdul Barik (1917) 44 Cal. 950, which follows the view that Order 9, is applicable to matters arising out of execution proceedings. On the other hand, a large number of cases support the view of Richardson, J., that Order 9 is inapplicable to any matter arising in the course of execution of a decree. Charu Chandra Ghose v. Chandi Charan Roy (1914) 19 C.W.N. 25, Hari Charan Ghose v. Manmatha Nath Sen (1914) 41 Cal. 1, Hanseswari Dasi v. Radhika Dasi (1921) 63 I.C. 855 and Kala Chand Bisharad v. Sheikh Admat Ali S.A. Nos. 521 and 522 of 1923 decided on 26-11-23. We have considered all these cases having regard to the ratio decidendi stated. We have come to the conclusion that the view that Order 9, Code of Civil Procedure, is not applicable to applications arising out of execution proceedings is correct and shall be adapted. The recent Full Bench decision of the Patna High Court in the case of Bhubaneswar Prosad Singh v. Tilakdhari Lal (1919) 4 P.L.J. 135 has stated the case comprehensively and we entirely agree with the reasons given therein. It is, however, still argued that Section 141, Code of Civil Procedure makes Order 9 applicable to cases like the present. The argument is based on the ground that an application under Order 21, Rule 90 is numbered separately as a miscellaneous case and this makes the provisions of the Code of Civil Procedure applicable to any proceeding so numbered and treated as a separate proceeding in execution. This argument found favour with the learned Judge who decided the case of Diljanminha Bibi v. Hementa Kumar Roy (1915) 19 C.W.N. 758. We do not think that there is much force in it. The objections that are made under Order 21 to the execution of a decree as to where the adjustment of a decree has not been certified under Order 21, Rule (2) as in the case of Hanseswari Dasi v. Radhika Dasi (1921) 63 I.C. 855 or objections under Rules 100 and 103, as in the case of Hari Charan Ghose v. Manmatha Nath Sen (1914) 41 Cal. 1, or under such other circumstances, are no doubt numbered separately but they are virtually proceedings in execution. In the case of Charu Chandra Ghose v. Chandi Charan Roy (1914) 19 C.W.N. 25, the application under consideration was one under Order 21, Rule 90. It was there held that Order 9, Code of Civil Procedure, was not applicable.
3. It is next urged that the cases which have held that Order 9 is not applicable to execution proceedings have proceeded upon the view that there are other remedies open to the applicant and therefore, the Legislature has purposely made Order 9 inapplicable to such cases; and it is argued that in the present case there is no remedy open to the petitioner as no separate suit lies in which the order under Order 21, Rule 90 can be challenged. It is contended, therefore, that Order 9 ought to be made applicable to cases like this. We do not think that there is any substance in the contention. The reason for holding that Order 9 is not applicable to a case under Rule 101 applies equally to a case under Order 21, Rule 90.
4. There is one other difficulty in the petitioner's way. The order passed by the learned Subordinate Judge on the 29th November, 1923 is in these terms; 'Neither party appears though called.; Ordered that the objection be disallowed for default. The sale be confirmed and the execution case be dismissed in park satisfaction.' By this order the Court, disallowing the petitioner's objection under Rule 90, confirms the sale. That last portion of the order must be taken to have been passed under Rule 92. If that be so, an appeal lies from that order under Order 43, Rule 1 (f). The proper course which the petitioner should have followed was to appeal against the order of the Court below and not to come to this Court to seek the exercise of our revisional jurisdiction. The question whether an order dismissing an objection under Rule 90 exparte is appealable or not came up for consideration in the case of Charu Chandra Ghose v. Chandi Charan Roy (1914) 19 C.W.N. 25. There it was argued that the order passed by the Court below was one under Order 9, Rule 13 and, therefore, it was appealable under Order 43, Rule 1 (e). The learned Judges held that Order 9 does not apply to such cases. The point was also considered in the case of Kali Kanta v. Syam Lal (1917) 25 C.L.J. 163, and Richard-son and Smither, JJ., without deciding whether Order 9 was applicable under Order 21, Rule 90 held that the effect of the dismissal of an application under Rule 90 even for default was to confirm the sale under Rule 92, and hence an appeal lay to the lower Appellate Court. The present case is stronger than the case quoted. The order of the Court below dated the 24th November, 1923 not only disallowed the petitioner's objection but also confirmed the sale. In our judgment the order was passed under Rule 92, and was, therefore, appealable. The present application invoking our interference under our revisional jurisdiction cannot be maintained.
5. We are, in conclusion, asked by the learned vakil for the petitioners to exercise our revisional jurisdiction by treating this application for restoration as one under Order 47, Rule 1, or under Section 151, Code of Civil Procedure. We are not prepared to adopt this course. Besides, if we are correct in the view that we have expressed, namely, that an appeal lies in this matter, we have no jurisdiction to interfere with the order of the Court below under Section 115, Civil Procedure Code.
6. This rule accordingly fails and is discharged with costs. We assess the hearing foe at two gold mohurs.