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 O. 9, r. 4, for restoration of an application which was dismissed for default. The original application was under O. 21, r. 90 for setting aside a sale on the ground of material irregularity in the publication of sale processes. On the date of bearing neither party appeared and the Court, having disallowed the petitioner's prayer for further time, dismissed the application and confirmed the sale. The petitioner thereupon applied to the learned Sub-ordinate Judge for its restoration. The learned Judge being, of opinion that O. 9 of the CPC, was not applicable to an application under O. 21, r. 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 O. 9 is applicable to an application under O. 21, r. 90.
3. 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 Diljanmihha Bibi v. Hemanta Kumar Roy(1), Bhuban Behari Nag v. Direndra Nath Banerjee(2) and Bepin Behary Saha v. Abdul Barik(3), which follows the view that O. 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 O. 9 is inapplicable to any matter arising in the course of execution of a decree. Charu Chandra Ghose v. Chandi Charan Roy(4), Huri Charan Ghose v. Manmatha Nath Sen(5), Hanseswari Dasi v. Radhika Dasi(6), and Kala Chand Bishard v. Sheikh Admat Ali(7). We have considered all these cases having regard to the ratio decidendi stated. We have come to the conclusion that the view that O. 9 of the CPC, is note applicable to applications arising out of execution proceedings is correct and shall be adopted. The recent Full Bench decision of the Patna High Court in the case of Bhubaneswar Prosad Singh v. Tilakdhari Lal(8) has stated the case comprehensively and we entirely agree with the reasons given therein. It is, however, still argued that Section 141 of the CPC makes O. 9 applicable to cases like the present. The argument is based on the ground that an application under O. 21, r. 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 Diljanmihha Bibi v. Hemanta Kumar Roy. We do not think that there is much force in it. The objections that are made under O. 21 to the execution of a decree as where the adjustment of a decree has not been certified under O. 21, r. (2) as in the case of Hanseswari Dasi v. Radhika Dasi or objections under rr. 100 and 103, as in the case of Hari Charan Ghose v. Manmatha Nath Sen, 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, the application under consideration was one under O. 21, r. 90. It was there held that O. 9 of the CPC, was not applicable.
4. It is next urged that the cases which have held that O. 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 O. 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 O. 21, r. 90 can be challenged. It is contended, therefore, that O. 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 O. 9 is not applicable to a case under r. 101 applies equally to a case under O. 21, r. 90.
5. There is one other difficulty in the petitioner's way. The order passed by the learned Sub-ordinate 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 part satisfaction.” By this order the Court, disallowing the petitioner's objection under r. 90, confirms the sale. That last portion of the order must be taken to have been passed under r. 92. If that be so, an appeal lies from that order under O. 43, r. 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 r. 90 ex parte is appealable or not came up for consideration in the case of Charu Chandra Ghose v. Chandi Charan Roy, . There it was argued that the order passed by the Court below was one under O. 9, r. 13 and, therefore, it was appealable under O. 13, r. 1(e). The learned Judges held that O. 9 does not apply to such cases. The point was also considered in the case of Kali Kanta v. Shyam Lal(9), and Richardson and Smither, JJ., without deciding whether O. 9 was applicable under O. 21, r. 90, held that the effect of the dismissal of an application under r. 90 even for default was to confirm the sale under r. 92 and hence an appeal lay to the lower App dilate 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 r. 92 and was therefore, appealable. The present application invoking our interference under our revisional jurisdiction cannot be maintained.
6. 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 O. 47, r. 1 or under Section 151 of the CPC. 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 of the CPC.
7. This rule accordingly fails and is discharged with costs. We assess the bearing fee at two gold mohurs.
8. Rule discharged.