An order dismissing an application under Order XXI, Rule 90 of the Code of Civil Procedure for non-prosecution is appealable as it is equivalent to an order refusing to set aside a sale.

Sinha, J.

1. This appeal is directed against an order of the Court below dismissing an application under Order XXI, Rule 90 of the Code of Civil Procedure for non-prosecution on the 13th of September, 1952.

2. Mr. Kailash Ray, appearing on behalf of the respondent, took a preliminary objection to the maintainability of the appeal on the ground that the dismissal of an application under Order XXI, Rule 90, for non-prosecution does not come under the purview of Order XLIII, Rule l(j) of the Code, which provides for an appeal against an order under Rule 72 or Rule 92 of Order XXI of the Code setting aside or refusing to set aside a sale. The contention of Mr. Ray is that merely dismissing the application under Order XXI, Rule 90 is not an drder "setting aside or refusing to set aside a sale". This preliminary objection, however, is not supported by any authority of this Court or of any other Court. I must confess, however, that I first felt that there was merit in this preliminary objection, but, on further consideration, I find that the result of dismissing the application under Order 21, Rule 90 for non-prosecution is nothing different from disposing of the application on merits. If the application is disposed of on merits and is dismissed, the result is that the sale is confirmed; likewise, if the application is dismissed for non-prosecution, the result is the same, namely, that the sale is confirmed. In the present case, on that very date, 13-9-1952, the Court did pass an order to the effect that the sale was confirmed. In that view of the matter, I am inclined to hold that the preliminary objection is without substance, and that appeal lies.

3. It appears, there was some divergence of views in the Calcutta High Court on this point, but the later decisions of that Court, which have been brought to our notice, take the view which I have ventured to take. In the case of Basanta Kumar Adak V/s. Khirode Chandra Ghose, ILR 55 Cal 616: (AIR 1928 Cal 25) (A), their Lordships held that, where the application under Order 21, Rule 90, was dismissed either on the merits, or when the applicant did not appear, but the opposite party appeared and was willing to contest the application, the order dismissing the application to set aside a sale was an order "refusing to set aside a sale" within Order 43, Rule 1(j); and that in either case the order confirming the sale under Order 21, Rule 92, was ancillary to, and followed as of course from the order dismissing the application to set the sale aside, and was subject to appeal. The distinction drawn between a dismissal of an application under Order 21, Rule 90, for non-prosecution in presence of the other side or in his absence was held in a later case, Ansarali V/s. Bhim Shankar Datta, ILR 56 Cal 969: (AIR 1929 Cal 407 (2)) (B)r to be a difference without substance, and further that an order dismissing an application under Order 21, Rule 90, for default was appealable under Order 43, Rule 1 (j), of the Code and there was no distinction on principle between the order of dismissal for default for non-appearance of one of the parties and an order of dismissal for non-appearance of both the parties.

4. Coming to the merits, Mr. Srivastava has submitted that the Court below, without considering the materials on record, disposed of the application which was filed on that date for grant of further time. Of the two applications of that date, one asked for time and the other asked, for dasti summons to the witnesses for the appellants. The application for time was supported by a certificate of a doctor dated 12th of September, 1952, and one Dr. J. N. Mahaseth, M. B. B. S. certified that Ram Pratap Mandal, one of the appellants, who was said to be looking after the case, was suffering from gallbladder trouble since 3rd of September, 1952, and that he was under his treatment and had been advised rest while under treatment. The certificate further said that the patient was unable to attend Court.