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HIGH COURT OF CALCUTTA
SANKAR PRASAD MITRA, M. M. DUTT, AMAL KRISHNA DE
BIMALA DEVI - Appellant
Versus
AGHORE CHANDRA MALLICK - Respondent
Full Bencj ref. No. 1 of 1972 arising out of C.R. Co. 2724 of 1966
Decided On : July 17, 1974
CIVIL PROCEDURE CODE - Order 21 Rule 90 - Appeal - Maintainability - Application under Order 21 Rule 90 dismissed for default - Whether an appeal lies under Order 43 Rule 1 (j) - Scope of appeal and remedy available to a deserving appellant - Whether an application under section 151 of the Code of Civil Procedure is maintainable.
Fact of the Case:
The petitioner's first bid in a sale in execution of a decree was not accepted. Two days later, the petitioner's bid was accepted and the sale took place. The opposite party filed an application under Order 21 Rule 90 of the Code of Civil Procedure (CPC) to set aside the sale, which was dismissed for default on the 7th May, 1966. The sale was confirmed on the 10th May, 1966. The opposite party filed an application on May 17, 1996, under section 151 of the CPC for reserving the order to dismissal for default made on the 7th May, 1996. Possession was delivered to the petitioner on the 31st May, 1966; but the application under section 151 was allowed, the order of dismissal was set aside and the Miscellaneous Case No. 51 of 1965 was restored to file by an order of the learned Subordinate Judge, dated July 15, 1966.
Finding of the Court:
1. An appeal lies under Order 43 Rule 1 (j) of the CPC from an order dismissing an application under Order 21 Rule 90 of the CPC for default of appearance of one of the parties. 2. The scope of the appeal is limited to the question of whether the appellant was prevented by sufficient cause from appearing before the Court of first instance when his application under Order 21 Rule 90 was dismissed for default, and whether the sale shall be set aside on the ground of material irregularity or fraud in publishing or conducting it whereby the appellant has sustained substantial injury. 3. The Appellate Court has no evidence on record to render a decision on the sufficiency of the cause and can give no relief to the appellant. 4. An application under section 151 of the CPC is maintainable when an application under Order 21 Rule 90 has been dismissed for default and an appeal is preferred from the order of dismissal.
Issues: 1. Whether an appeal lies under Order 43 Rule 1 (j) of the CPC from an order dismissing an application under Order 21 Rule 90 of the CPC for default of appearance of one of the parties? 2. What is the scope of the appeal and the remedy available to a deserving appellant? 3. Whether an application under section 151 of the CPC is maintainable when an application under Order 21 Rule 90 has been dismissed for default and an appeal is preferred from the order of dismissal?
Ratio Decidendi: 1. The Calcutta High Court has consistently held that an appeal lies under Order 43 Rule 1 (j) of the CPC from an order dismissing an application under Order 21 Rule 90 of the CPC for default of appearance of one of the parties. 2. The scope of the appeal is limited to the question of whether the appellant was prevented by sufficient cause from appearing before the Court of first instance when his application under Order 21 Rule 90 was dismissed for default, and whether the sale shall be set aside on the ground of material irregularity or fraud in publishing or conducting it whereby the appellant has sustained substantial injury. 3. The Appellate Court has no evidence on record to render a decision on the sufficiency of the cause and can give no relief to the appellant. 4. An application under section 151 of the CPC is maintainable when an application under Order 21 Rule 90 has been dismissed for default and an appeal is preferred from the order of dismissal.
Final Decision: Rule discharged. No order as to costs.
( 2 ) THE point that arises for our consideration, is the maintainability of the application under section 151 on the facts and in the circumstances stated above. As there were differences of opinion on this question between Division Benches of this Court, the entire matter was referred by me and my learned Brother, Mr. Justice S. K. Datta to a Full Bench under Chapter VII of the Appellate Side Rules.
( 3 ) NOW, Order 21 Rule 90 of the Code provides, for an application to set aside a sale in execution of a decree on the ground of material irregularity or fraud in publishing or conducting the sale provided that the applicant has sustained substantial injury by reason thereof.
( 4 ) ORDER 21 Rule 92 of the Code provides, inter alia, that where an application under Order 21 Rule 90 is made and disallowed the Court shall make an order confirming the sale and thereupon the sale shall become absolute.
( 5 ) UNDER Order 43 Rule 1 (j) an appeal lies under the provisions of section 104 of the Code from an order under Rule 92 of Order 21 setting aside or refusing to set aside a sale.
( 6 ) THERE is a difference of opinion amongst the High Courts as to whether an appeal lies under Order 43 Rule 1 (j) from an order dismissing an application under Rule 90 of Order 21 on the ground of default. In (1) Kali Kanta v. Shyam Lal. AIR 1917 Cal 815 a Division Bench of this Court held that the language of Order 43 Rule 1 (j) was wide enough to cover a case where an application under Order 21 Rule 90 was dismissed for default. Such a dismissal amounted to an order under Rule 92 of Order 21.
( 7 ) IN (2) Basaratulla v. Reazuddin, AIR 1926 Cal 773 a somewhat different view was taken by another Division Bench consisting of Cuming and Page JJ. It was held that an order dismissing an application to set aside a sale merely in default of appearance of both the parties would not be regarded as in any way confirming the sale and as such, was not appealable under Order 43 Rule 1 (J ). The applicant was not debarred from making a fresh application for the same purpose within the time allowed by the statute of limitation and when the application was otherwise duly made according to the requirements of the law. Two separate judgements were delivered by the learned judges.
( 8 ) IN (3) Ansar Ali v. Bhim Sankar, AIR 1929 Cal 407 a later Division Bench consisting of Mukerji and Mitter JJ. , considered the decision in Basaratulla's case but declined to follow it. It was held that when no formal order had been recorded confirming the sale and the application under Order 21 rule 90 had been dismissed for
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