Bhuban Behary Nag Ma... v. Dhirendra Nath Baner...

These two applications arise out of proceedings for the setting aside of a certain Court sale.

The sale was held on the 22nd April 1912, and was confirmed on the 23rd of May of that year.

Sometime towards the close of 1913 the judgment-debtor applied under Or. XXI, r. 90 to have the sale set aside.

This application came on for hearing on the 25th July 1914 when both parties, i.e, the judgment-debtor and the auction-purchaser applied for time. Both applications were rejected, and the Petitioner taking no further steps his application was dismissed for default.

On the 28th July, the Petitioner applied that the order should be reviewed and his application for setting aside the sale restored. This application for review or restoration was dismissed or rejected on the 15th January 1915.

Against both orders of rejection or dismissal appeals were preferred to the Subordinate Judge. Both appeals were decreed on the 25th July 1915.

The auction-purchaser has now obtained the present rule calling upon the Opposite Parties to show cause why the Subordinate Judge's order should not be set aside on the ground that in neither case did an appeal lie.

In support of the rule, it is first contended that the order dismissing the application to set aside the sale was made in the absence of both parties. If so, and if the provisions of Or. IX apply, the order was one under Or. IX, r. 3, and the application to have it set aside was one under Or. IX, r. 4. Against an order rejecting an application under Or. IX, r. 4, Or. XLIII provides no appeal.

We are unable to accede to this contention. No doubt in the first Court's order of the 28th July dismissing the application for setting aside the sale, it is stated that both parties had been in default. But by part of the same order an application made by the Opposite Party (the auction-purchaser) is rejected. The inference is that he was present. No suggestion to the contrary appears to have been made in the Court of Appeal and on what after all is a question of fact we do not think that we should differ from the Subordinate Judge.

It follows that if the provisions of Or. IX apply to applications for setting aside sales, the application in the present case was dismissed under Or. IX, r. 8 and the application to have that dismissal set aside was made and rejected under Or. IX, r. 9.

The question in the Rule then is whether by virtue of the provisions of Or. IX, r. 9 and of Or. XLIII, r. 1, cl. (c), an appeal lies against an order refusing to restore an application made under Or. XXI, r. 90, and dismissed for deafult.

We can see no reason in principle why Or. IX, r. 9, should not be held applicable to applications for setting aside sales and in support of the view that the rule does apply in such cases we have direct authority in Deljan Nichha Bibee v. Hemanta Kumar Ray and in Safdar Ali v. Kishun Lal. We therefore hold Or. IX, r. 9, to be applicable.

The next question is whether Or. XLIII, r. 1, cl. (c), confers a right of appeal against an order made under Or. IX, r. 9, refusing to restore an application for the setting aside of a sale. In other words the question is whether for the purpose of Or. XLI, r. 1(c), an application for the setting aside of a sale is a suit.

There can be no doubt we think that an application to set aside a sale is a proceeding which may terminate in an adjudication such as is referred to in sec. 2 of the Code, and if the question had been res integra we should have been prepared to hold that it was a suit within the meaning of Or. XLIII, r. 1, cl. (c).

But in a series of cases of which the latest is Charu Chandra Ghosh v. Chandi Charan Ray Chowdhury, the contrary view has been taken, and, in the present case, as it is open to us to interfere under sec. 115 of the Code, we are not disposed to make a reference to the Full Bench.

From the order of the District Judge it is clear that in dismissing and again in refusing to restore the application the Munsif erred in attributing to the Applicant a default or laches which was in fact the default or laches of the Court and its officers.

Proceeding, therefore, in our revisional jurisdiction we adopt as our own the order made by the Subordinate Judge on the 22nd July 1915, in so far as it sets aside the orders made by the Munsif on the 25th July 1914 and 15th January 1915 and direct that the Munsif do now proceed to hear the application for setting aside the sale, and determine the same on the merits. Costs in all Courts will abide the result. We assess the hearing fee in this Court at two gold mohurs.

N.G

S.C.G