The Judgment of the Court was as follows:—
Mukerji, J.:— This Rule has been issued to show cause why the order of the Subordinate Judge of Noakhali, dated the 8th May 1928, refusing to entertain an appeal should not be set aside, or why such other or further order should not be made as to this Court may seem fit and proper.
The facts necessary to be stated are these:— There was an application under Or. 21, r. 90 of the Code of Civil Procedure filed by the Petitioner in the Court of the Munsif at Sudharam. On the day fixed for the hearing of this application neither of the parties appeared before the Court with the result that the said application was dismissed for default. Against that order the Petitioner preferred an appeal which came up before the Subordinate Judge of Noakhali, and he, on the 8th May 1928, dismissed the appeal holding that from the order passed by the Munsif no appeal lay under the law. It is against this order of the learned Subordinate Judge that the present rule is directed.
The question as to whether an order dismissing an application under Or. 21, r. 90 for default is appealable or not has come up for consideration before this Court in a very large number of cases and it has been held that such an order falls under Or. 21, r. 92, Civil Procedure Code and as such an appeal lies from it under Or. 43, r. 1(j) of the Code. [See, e.g, Brojo Sundar Roy Choudhury v. Mati Lal Majumdar (1), Kumud Kumar Bose v. Hari Mohan Samaddar (2) and Kali Kanta Chakravarti v. Shyam Lal Das Basu (3). In one of the more recent decisions of this Court a doubt was expressed by my learned brother Page, J., as regards the correctness of these decisions. This was the case of Basaratulla Mean v. Reazuddin Mean . In that case none of the parties to the proceedings appeared and upon that the application under Or. 21, r. 90 was dismissed by the Court. On an application for revision being preferred to this Court, Page, J., was of opinion that the order of dismissal for default passed on an application under Or. 21, r. 90 of the Code is not an order which is appealable unless it also confirms the sale within the meaning of Or. 21, r. 92 of the Code. He, however, distinguished the earlier decisions of this Court to some of which I have already referred upon the ground that in those cases the application had been dismissed for default of the applicant and they were not cases in which both parties were absent. He was able to distinguish those cases upon the ground aforesaid and he held that when both parties are absent and the application under Or. 21, r. 90 is dismissed under circumstances which would correspond to Or. 9, r. 4 of the Code of Civil Procedure an appeal can under no circumstances lie from such an order of dismissal. The learned Subordinate Judge appears to have followed this decision of Page, J.
The Petitioner's contention is that even in a case when the order of dismissal was passed on account of default of appearance on the part of both the parties to the proceeding, an appeal is maintainable under Or. 43, r. 1(j), in view of the fact that such an order comes within the purview of Or. 21, r. 92 of the Code. There is a decision of this Court though not reported, passed in Appeal from Order No. 285 of 1922 and Rule No. 659-M of 1922 in which it appears that it was held that an appeal does lie from such an order. There is also another decision of this Court in the case of Narendra Nath Chatterji v. Rakhal Das Tarafdar (5) which was a case in which the Court disallowed the prayer of an application in a proceeding under Or. 21, r. 90 for time and when neither of the parties to the proceeding was present dismissed the application and confirmed the sale, and it was held that such an order was appealable under Or. 43, r. 1(j) of the Code. The last mentioned case no doubt is distinguishable from the case now before us, because here it does not appear that although the application was dismissed for default there was any formal order recorded confirming the sale.
The question therefore is whether when no such formal order has been recorded confirming the sale and the application under Or. 21, r. 90 has been dismissed for default for non-appearance of both the parties to the proceeding the order of dismissal passed under those circumstances is open to appeal. It appears that in the Code of 1882, sec. 312 which corresponds to Or. 21, r. 92 of the Code of 1903 ran in these words:— “If no such application as is mentioned in the last preceding section be made, or if such application be made and the objection be disallowed the Court shall pass an order confirming the sale as regards the parties to the suit and the purchaser. Sec. 588 of that Code which corresponds to Or. 43 of the present Code and provided for Appeals from Order in its cl. (16) enacted that “orders under sec. 294 and orders under sec. 312 and orders under sec. 313 for confirming or setting aside or refusing to set aside a sale or immoveable property,” etc. In the present Code Or. 43, r. 1(j) speaks of an order under r. 72 (with which we are not concerned) or r. 92 of Or. 21 setting aside or refusing to set aside a sale. It appears therefore that the words “for confirming” which were to be found in sec. 588, cl. (16), have been dropped out. The obvious intention of the legislature was not to treat an order confirming a sale as one distinct in its essence from an order disallowing an application under Or. 21, r. 90. This intention appears to be further clear from the fact that Or. 21, r. 92 says that where no application is made under r. 89, r. 90 or r. 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. It is the disallowing of the application made under Or. 21, r. 90 which corresponds to the order refusing to set aside a sale within the meaning of Or. 43, r. 1, cl. (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 Or. 21, r. 90, and it is this last mentioned order that is appealable by reason of the provisions of Or. 43, r. 1, cl. (j). My learned brother Page, J., was prepared to make a distinction between orders passed for default of appearance on the part of both the parties and orders passed for default of appearance of one of the parties only, and he observed that in dismissing an application for default when neither party appears on the case being called on 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. With all respect I should say that this distinction, in my judgment, really makes no difference in the result, because the statutory consequence of the disallowing of the application is the confirmation of the sale at least to the extent covered by the application. In my opinion it is not correct to draw any conclusion from the analogy furnished by the provisions of Or. 9, r. 4 and Or. 9, r. 9, because the provisions of Or. 9 have got no application to a case under Or. 21, r. 90, Code of Civil Procedure. I am of opinion that there is no distinction in principle between an order passed on an application under Or. 21, r. 90, dismissing it for default either for non-appearance of one or for non-appearance of both the parties, and the principle upon which the other decisions to which I have referred above proceed, is in my opinion, equally applicable to a case of the present nature.
For these reasons I am of opinion that this rule should be made absolute. The order against which it is directed is accordingly set aside and it is ordered that the learned Subordinate Judge should proceed to entertain the appeal and deal with it in accordance with law.
As there is no appearance for the Opposite Party in this rule there will be no order for costs.
Mitter, J.:— I agree.
P.C