P L D 1957 Dacca 177 (PLP)

This appeal first came up for hearing before us on the 10th of May 1955, and as it was found, on that occasion, that the Miscellaneous Case No. 14 of 1952 had not till then been disposed of, we on the next day adjourned the hearing of this appeal for five weeks upon the undertak ing that the appellant will within that period get the same disposed of. We are, however, now informed that the said miscellaneous case was dismissed for default after the appellant had failed to comply with the condition laid down in the order of this Court staying the hearing of that application, and that Mr. Nandi, the learned Advocate for the appellant, has not been able to obtain any further instructions from his client in this matter, in spite of his efforts. He has, nevertheless, pressed his appeal before us and his contention, in substance, is that the learned Sub ordinate Judge had no jurisdiction to confirm the sale during the pendency of the application under Order XXI, rule, 95 of the Code of Civil Procedure for setting aside the sale, and that in so far as he had confirmed the said sale, he has acted clearly without jurisdiction and the order should be set aside. There can be no doubt that the learned Subordinate Judge did act with material irregularity in exercising his jurisdiction in confirming the sale without disposing of the application under Order XXI, rule 90, Civil P: C., but as this matter has come before us, not by way of an application for revision under section 115 of the Code of Civil Procedure, but by way of an appeal, there is a difficulty in the way of our setting aside this order in this appeal. The difficulty is, as was urged before us, by, Mr. B. C. Das, at the time when this appeal first came up for hearing, that since the appeal is a creature of Statute, the only order under Order XXI, rule 92 of the Code of Civil Procedure from which an appeal has been provided for under Order XLIII, rule 1 (j) of the Code, is an order setting aside or refusing to set aside a sale. Clearly, in the circumstances of the present case as the learned Sub ordinate Judge had neither made an order setting aside the sale nor had made an order refusing to set aside the sale and, in fact, had not even applied his mind to this question while confirming the sale, the order merely confirming the sale was not an appeal-able order. In support of this contention Mr. B. C. Das has relied on the case of Nirendra Nath Banerjee v. Birendra Nath Chatterjee (46 C W N 773). In that case what had happened was that various judgment‑debtors had put in applications under Order XXI, rule 90 of the Code of Civil Procedure for setting aside a sale, but the applications of the judgment‑debtors other than the petitioner in tat case were withdrawn and thereupon the Subordinate Judge passed an order confirm ing the sale. In those circumstances Derbyshire C. J., and Sen J. held that the order confirming the sale was one from which no appeal lay under Order XLIII, rule 1 (j) of the Code of Civil Procedure. The reason given by them for holding this view was: "In the present case, the Court has not refused to set aside the sale. It has merely confirmed the sale without in any way dealing with the application to have the sale set aside. Indeed the Court when it passed the order confirming the 'sale was obvious of the fact that there was such an application pending. Refusal is something positive; it is not a mere abstention. The refusal by a Court to do a thing pre‑supposes that the Court has taken cognizance of a prayer made to it to do that thing. Here there was no such refusal but a mere confirmation. It is the refusal to set aside the sale that is made appeal-able and not a mere order confirming the sale. Mr. Das urges that the facts are stronger here because it is apparent from the order‑sheet that not only had the learned Subordinate Judge not applied his mind to the application pending but bad in fact, left it open for hearing at a subsequent date and, therefore, clearly it could not be said that by merely confirming the sale he had also refused to set aside the sale. Mr. Nandi, however, contends that the decision in the case of Nirendra Nath Banerjee v. Brindra Nath Chatterjee is wrong. According to him, on the language of Order XXI, rule 92 of the Civil P. C., where an application is made under Order XXI, rule 90 of the Code, the Court acquires the jurisdiction to confirm only after disallowing the appli cation under Order XXI, rule 90; and in those circumstances, if the Court confirms the sale, it must be taken that that order tantamount also to disallowing the application for setting aside the sale, and would, therefore, be an order which would be appeal-able under Order XLIII, rule 1 (i), Civil P. C. In support of his contention Mr. Nandi has relied on certain observations made in the following cases: Jagneswor Sikdar v. Kailash Mondal and others (28 C W N 821); Basaratulla Meah and others v. Riazuddin Meah and others (30 C W N 570); Ansarali v. Bhim Sankar Dutta Tewari (33 C W N 392); Guru Charan Namasudra v. Mahendra Chandra Pal and others (4 C W N 352) and Banarsi Das and another v. Ram Chandra and another (A I R 1933 Lah. 210). Apart from the case Banarsi Das and another v. Ram Chandra and another, the facts of all the other cases referred to by Mr. Nandi are entirely different from those of the present cases. The case of Jagneswor Sikdar v. Kailash Mondal and others, was a case in which an auction‑purchaser, who had obtained possession of the suit lands through Court, and was subsequently dispossessed there from, had brought a suit for the recovery of possession of the same. In that case Walmsley and Suhrawardy JJ., observed at, one place that the confirmation of a sale "amounts to a judicial determination that none of the objections exist on which the validity of the sale could have been questioned"; but `towards the end of the judgment this observation was to a certain extent restricted and it was said that "the pro visions of rule 92 preclude a judgment‑debtor from asking a Court in such a suit as this to go into questions which affect nothing but the regularity of the sale". In any view of the matter, the precise question that is now before us did not fall for consideration in that case and we are not concerned here with the effect that the failure to make an application under Order XXI rule 90, Civil P. C. may have in a subsequent suit for recovery of possession after the sale has been confirmed under rule 92 of the Code. The case Basaratulla Meah and others v. Riazuddin Meah and others, was a case where an application had been made under section 115 of the Code of Civil Procedure for revising an order dismissing an application for restoration, under Order IX, rule 4, of an application under Order XXI, rule 90, Civil P. C., which had been dismissed for default by reason of neither party being present. In that case what was observed by Page J. was that "in dismissing the appli cation for default when neither party appears on the case being called for hearing, the Court does not refuse to set aside the sale but in the absence of the parties refused to consider whether the sale should be set aside or not", and that such an order was not an appeal-able order under Order XLIJI, rule 1 (j); but that "if the Court not only dismisses the application but orders that the sale be confirmed, such an order is within rule 92, and is appeal-able under Order XLIII, rule (1) (i)". The distinction made in this case was that where the Court had merely refused to consider whether the sale should be set aside or not, the order was not appeal-able, but where it had considered and then refused to set aside the sale, that order was appeal-able. This does not, in our opinion, support Mr. Nandi's contention that even in a case where it is manifest from the record itself that the Court has not applied its mind to the question as to whether the application for setting aside the sale under Order XXI, rule 90 of the Code of Civil Procedure should be allowed or disallowed, an order confirming the sale must also amount to an order refusing to set aside the sale. The view taken in Basartulla Meah and others v. Reazuddin Meah and others, has furthermore been dissented from in subsequent cases referred to by Mr. Nandi himself, namely, Ansar Ali v. Bhim Sankar Dutta Tewari and Guru Charan Namasudra v. Mahendra Chandra Pal and others. The case in Ansar Ali v. Bhim Sankar Dutta Teivari was also a case where the application under Order XXI, rule 90 of the Code of Civil Procedure had merely been dismissed for default, by reason of neither of the parties being present when the application was taken up for hearing; and no formal order confirming the sale had been made. In that case Mukherjee and Mitter JJ. dissenting from the case Basaratulla Meah and others v. Reazuddin Meah and others, held that such an order was an appeal-able order even though no formal order confirming the sale had been made under Order XXI, rule 92, Civil P. C., because "the statutory consequence of the disallowing of the application is the confirmation of the sale at least to the extent converted by the application". In our opinion, it is possible to contend that where an application for setting aside sale has been disallowed, but no formal order confirming the sale has been made, the order is an order coming within the terms of Order XLIII. rule I (j) of the Code of Civil Procedure, which provides for an appeal from an order refusing to set aside a sale; because whether the statutory consequence, namely, the confirmation of the sale, follows or not, the order setting aside the sale under rule 92, would itself be an appeal-able order. This appears to have been the view that was taken also in the case of Guru Charan Namasudra v. Mahendra Chandra Pal and others, where the question to be decided was as to the date from which limitation would begin to run in the case of an appeal from an order disallowing an application under Order XXI, rule 90 of the Code of Civil Procedure, and then subsequently confirming the sale by a separate order on another date. In that case Mukherjee, J. relied upon the case of Ansar Ali v. Bhim Sankar Dutta Tewari and observed as follows: "The fact that confirmation of sale is made subse quently by a separate order does not in my opinion make any difference. The order of dismissal itself being an order refusing to set aside the sale, an appeal would lie against it and not against the order of confirmation passed later on." It would thus appear that the appeal is against the order refusing to set aside the sale, and not, as urged by Mr. Nandi, against the order confirming the sale. In our opinion, Order XXI, rule 92, Civil P. C., contemplates, in a case where an application under Order XXI, rule 90 is made for setting aside a sale, the making of two orders, one dis allowing the application for setting aside the sale and the other confirming the sale; because the first part of rule 92 itself indicates that where no application for setting aside a sale is made there also the Court shall confirm the sale. In the latter case, of course there would be no order disallowing the application under; Order XXI, rule 90, but if Mr. Nandi's contention is accepted, even in this case the order confirming the sale must be taken to be also an order refusing to set aside the sale. The only case cited by Mr. Nandi, the facts of which have any semblance with those of the present case, is the one of Banarsi Das and another v. Ram Chandra and another, where an application had been made under Order XXI, rule 89 of the Code of Civil Procedure for permission to deposit in Court the amount due under the decree; but the said application did not contain any express prayer for setting aside the sale. The executing Court took the view that since there was no prayer for setting aside the sale; it had no option but to confirm the sale and did so con firm the sale. On appeal against that order Tapp J. held that the order of the executing Court, in the circumstances of that case, was tantamount to refusing to set aside the sale on the application of the judgment debtor, and therefore, was appeal-able under Order XLIII, rule 1 (j), because the mere fact that no express prayer for setting aside the sale was made in the application under Order XXI, rule 89, Civil P. C., did not matter very much as the consequence of allowing the said application would have been the setting aside of sale and that order would have been appeal-able under Order XLIII, rule 1 (j). Although Tapp, J. expressed that view, he himself did not feel very certain about it for he observed towards the end of his judgment: "In any case, if this view is wrong now that all the proceedings are before this Court, it is open to me to revise the order of the executing Court confirming the sale under section 115". Upon a consideration of these cases the conclusion to which we have arrived is that whilst there may be cases in which an order confirming the sale may also amount to an order refusing to set aside the sale, as for instance, where upon the facts and circumstances of a particular case it is manifest that the Court in confirming the sale did also, in fact, apply its mind to the questions relevant for deciding whether the sale should be set aside or not. But in a case where it is equally clear that the Court when confirming the sale was either oblivious of the fact that an application for setting aside the sale was also pending before it or it did not deliberately apply its mind to that question, and merely confirmed the sale keeping that question of setting aside the sale still pending, then such an order, merely confirming the sale, cannot, in our opinion, be considered to be also an adjudication of the application for setting aside the sale, and will not, in this event, be an order within the terms of Order XLIII, rule 1 (j), Civil P. C., from which an appeal has been provided for. In these circum stances, we feel that the case of Nirendra Nath Banerjee v. Birendra Nath Chatterjee, is almost on all fours with the facts of the case before us; and in the view we have taken, we have no reason to disagree with the view taken in that case. We must, therefore, hold that this appeal is not maintainable. Of course, if there was an alternative application under section 115 of the Code of Civil Procedure before us, or if our powers under the said section had been even otherwise invoked by the learned Advocate appearing for the appellant, we might have been inclined to set aside the order from which this appeal has been preferred; but since the learned Advocate for the appellant has neither filed such an application nor invoked our powers under section 115, Civil P. C., we do not consider it necessary to say anything further regarding this matter. In the result, this appeal must fail and is dismissed with costs. The adjournment that was granted on the 11th of May 1955, was subject to the condition that if the appellant failed to carry out his undertaking to get the application under Order XXI, rule 90, Civil P. C., disposed of within the time given to him, he would pay the costs of hearing of that day, which was assessed at Rs.

102. Since this undertaking has not been carried out by the appellant, the said sum of Rs. 102 will be added to the costs of this appeal and will be paid to the decree‑holders respondents. AMIN AHMED, ACG. C. J. ‑

I agree. K. B. A. Appeal dismissed.