Page, J.:— This is an appeal against two orders passed by the learned Subordinate Judge of Howrah on the 18th of December, 1926, by one of which the learned Judge dismissed the judgment-debtor's application for an order setting aside an execution sale under Order XXI, rule 90, and by the other he confirmed the sale. Now, the order dismissing the judgment-debtor's application to set aside the sale was passed upon the application of the opposite party, who urged that the application should be dismissed because neither the applicant nor any pleader on his behalf was present to support it when called for hearing.
A preliminary objection was taken to the competency of this appeal upon the ground that the order dismissing the judgment-debtor's application to set aside the sale under Order XXI, rule 90, was not an order under Order XXI, rule 92, “refusing to set aside a sale”, and, therefore, was not within Order-XLIII, rule 1(j). In my opinion, the preliminary objection fails. In Basaralulla Mean v. Reazuddin Mean the opinion was expressed:
“that an order dismissing an application to set aside a sals merely in default of appearance of the parties cannot be regarded as in any way confirming the sale. No doubt, if the Court not only dismisses the application but orders that the sale be confirmed, such an order is within rule 92, and is appealable under Order XLIII (1)(j). On the other hand, in dismissing the application for default when neither party appears on the case being called for bearing 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. Such an order, in my opinion, is not appealable under Order XLIII (1)(j). Whether an appeal lies from an order or not in each case must depend upon the construction of the order. In my opinion, where an order is passed dismissing an application to set aside a sale merely on default of appearance by the parties and not on the merits, the applicant is not debarred from making a fresh application for the same purpose, if he prefers the application within the time allowed by the statute of limitation, and the application otherwise is duly made according to the requirements of the law.”
The position is entirely different where the application under Order XXI, rule 90, is dismissed either on the merits, or when the applicant does not appear but the opposite party appears and is ready to contest the application. In either of those circumstances, in my opinion, the order dismissing the application to set aside the sale is an order refusing to set aside a sale within Order XLIII, rule 1(j), and in either case the order confirming the sale under Order XXI, rule 92, is ancillary to, and follows as of course from, the order dismissing the application to set the sale aside. In my opinion the orders of the 18th of December, 1926 by which the application to set aside the sale was dismissed and the sale was confirmed, were subject to appeal.
The appeal was then heard on the merits, and allowed.
Graham, J.:— I agree.
B.M.S
Appeal allowed.
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