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1964 Supreme(All) 211
Allahbad High Court
D.S.MATHUR
Kedar Nath - Appellant
Versus
Purushottam Das Banarsi Das - Respondent
Decided On : 11/25/1964
V.B.L. Srivastava, for Applicant; Hari Swarup, for Respondent.
An order dismissing an application under Order XXI, Rule 90, CPC, refusing to set aside a sale is appealable under Clause (j) of Order XLIII, Rule 1, CPC.
Headnote:
CIVIL PROCEDURE CODE - APPEALABILITY OF ORDER - ORDER DISMISSING APPLICATION UNDER O. XXI, R. 90, C.P.C. - WHETHER APPEALABLE - O. XLIII, R. 1(j), C.P.C. - INTERPRETATION.
Fact of the Case:
The judgment debtor filed a revision petition under Section 115 of the Code of Civil Procedure (CPC) against the order of the Civil Judge dismissing his objection under Order XXI, Rule 90, CPC, on the ground that the compliance of the proviso had not been made within the period of limitation.
Finding of the Court:
The court held that the order dismissing the application under Order XXI, Rule 90, CPC, refusing to set aside the sale was appealable under Clause (j) of Order XLIII, Rule 1, CPC.
Issues: Whether the order dismissing the application under Order XXI, Rule 90, CPC, was appealable.
Ratio Decidendi: The court interpreted Clause (j) of Order XLIII, Rule 1, CPC, and held that the words "setting aside or refusing to set aside a sale" used in the clause include an order refusing to set aside a sale as a consequence of which the sale is confirmed and becomes absolute under sub-rule (1) of Rule 92 of Order XXI, CPC.
Final Decision: The revision petition was dismissed, and the costs were imposed on the parties.
2. An order or decree can be challenged in a revision under S. 115, C.P.C. only if no appeal lies to the High Court. As a rule of practice the High Court refused to exercise the revisional jurisdiction where the order or decree is appealable leaving it open to the party to challenge it in appeal. The valuation of the suit in which the decree was passed has not clearly come on the record. An application of the judgment-debtor can suggest that the valuation is less than Rs. 3,333 while another application of the decree-holder would suggest that the valuation was above Rs. 5,000. The number of the suit is 67 of 1948. The possibility of the appeal against the order lying to the High Court cannot, therefore, be excluded. It will thus be safe for this Court not to exercise the revisional jurisdiction if the impugned order is appealable. Even though the period of limitation for filing the appeal has expired, it shall be open to the applicant to make an application under S. 5 of the Limitation Act for condonation of delay, all the more, when it appears that Cl. (j) of O. XLIII, R. 1, C.P.C. is capable of more than one interpretation.
3. Appealable orders are detailed in O. XLIII, R. 1, C.P.C., Cl. (j) thereof refers to an order under R. 72 or R. 92 of O. XXI setting aside or refusing to set aside a sale. In case the words "setting aside or refusing to set aside a sale" were not incorporated in this clause it could be said that the impugned order, namely, mere dismissal of the application under O. XXI, R. 90, was not appealable though an appeal would lie against the order confirming the sale. Similarly, if Cl. (j) had been worded differently to give a right of appeal against the order setting aside the sale or confirming it, no two opinions were possible.
4. It shall, however, be found that the words used in Cl. (j) are slightly different to the words used in the order contemplated by O. XXL R. 92(1), C.P.C. This sub-rule provides that :
"Where no application is made under R. 89, R. 90 or R. 91, or where such an application is made and disallowed, the Court shall make an order confirming the sale and thereupon the sale shall become absolute."
The decree-holder, or any person entitled to share in a rateable distribution of assets, or whose interests are affected by the sale, can apply under O. XXI. R. 90 (1), C.P.C. to have the sale set aside. The presentation and maintainability of such an application are determined, by this rule. However, O. XXI, R. 92(1) provides that where such an application (objection) is disallowed, the Court shall make an order confirming the sale and thereupon the sale shall become absolute. Rule 92(1) thus contemplates an order confirming the sale and once such an order is passed the sale becomes absolute. If R. 92 is strictly construed, it shall be deemed to contemplate an order confirming the sale, and had the words "setting aside or refusing to set aside a sale" were not used in Cl. (j) of O. XLIII, R. 1, C.P.C., the appeal would lie against the order confirming the sale and not an earlier order disallowing the application under O. XXI, R. 90, C.P.C. When the legislature considered it necessary to give further particulars of the appealable order covered by Cl. (j) all the words used must be given their proper meaning, and it shall have to be held that the order contemplated by Cl. (j) is one setting aside a sale as contemplated by sub-r. (2) of R. 92 of O. XXI or an order refusing to set aside a sale as a consequence of which the sale is confirmed and the sale becomes absolute under sub-r. (1). By implication this order shall be deemed to be under sub-r. (1) of R. 92 of O. XX
