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 me