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Report No. 54

Order 43, rule 1(i)

43.22. Under rule 1(i), an appeal is allowed against an order made under Order 21, rule 34, on an objection to the execution of a decree and the draft of the document prepared by the decree-holder or the endorsement of the negotiable instrument. The scope of Order 21, rule 34, is now proposed to be lirnited1. However, no change is needed in the rule relating to appeal.

1. See discussio as to Order 21, rule 34.

Order 43, rule 1(j)

43.23. Order 43, rule 1(j) provides for appeal against an order under Order 21, rule 72 or rule 92 setting aside or refusing to set aside a sale, where a decree-holder purchases property in execution without the permission of the Court. No change is needed in this rule.1

1. It has been considered desireable to retain Order 21, rule 72.

43.24. On the question whether an appeal lies from an order dismissing, for default, an application under Order 21, rule 90, the decisions were conflicting. In an earlier Calcutta case1, it was held that the language of Order 43, rule 1(j), is wide enough to cover such cases, as the effect of such an order is to confirm the sale under Order 21, rule 92. It may, however, be pointed out that under clause (j) of Order 43, rule 1, an appeal lies against an order refusing to set aside a sale and not against an order confirming the sale. This decision was followed in another Calcutta High Court case2, where also it was held that the effect of the dismissal of an application under rule 90 is to confirm the sale under rule 92, and hence an appeal lies against the Order.

1. Kali Kanta Chuckerbatty v. Shyam La!, AIR 1917 Cal 815, following (1915) 80 IC 492 and (1910) 45 IC 493.

2. Narendranath v. Rakhal Dass, AIR 1925 Cal 510.

43.24. The Patna High Court1 has, following two Calcutta cases2-3, held that an order dismissing an application under Order 21, rule 90 for non-prosecution is appealable under Order 43, rule 1(j). The reason given being that 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. Further, the question of appealability under Order 43, rule 1(j) does not depend upon whether the order under Order 21, rule 92 results in the confirmation of the sale, but on the fact whether the order is one refusing to set aside the sale or setting aside the sale.

1. Rampratap v. Triloknath, AIR 1957 Pat 485.

2. Basant Kumar v. Khirode Chandra, AIR 1928 Cal 25.

3. AIR 1929 Cal 407.

43.25. On the other hand, in another Calcutta decision1, it was held that an order of dismissal for default is not a confirmation of the sale, and does not preclude the party from making a fresh application, and that such an order is not appealable under Order 43, rule 1(j). In that case, Page J. observed that in dismissing the application 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 refuses to consider whether the sale should be set aside or not. It was observed further, that it is not every order of rejection that has been made appealable under Order 43, rule 1(j), but only that order of rejection by which the Court, on a demand being made by a person to set aside a sale, refuses to set aside the sale. This stands to reason, as a party who has allowed his application to be rejected for default or non-prosecution, cannot really complain that the Court has refused to set aside the sale on prayer.

1. Basaratulla v. Beazuddin, AIR 1926 Cal 733.

43.26. In a Madhya Pradesh case1, in a proceeding for the execution of a money decree against the respondent judgment debtors, certain property belonging to the judgment-debtors was sold and purchased by the second appellant Rajaram. Thereupon, the judgment-debtors filed applications under Order 21, rule 90 for setting aside the sale. The application was dismissed by the executing court for default of appearance of the judgment-debtors. Thereafter, the judgment-debtors filed applications for restoration of their applications under Order 21, rule 90 and section 47. These applications were rejected by the District Judge.

A revision petition against this order of the District Judge was dismissed by the High Court by a single Judge decision. Thereafter, the judgment debtors filed an appeal in the High Court against the order of the District Judge, Tare J., who heard the appeal, took the view that the appeal was not tenable, in view of the dismissal by the High Court of the revision petition filed by the judgment-debtors. Apparently, the single Judge, while deciding as above, expressed some opinion on the correctness of the orders of the District Judge.

1. Gopi Lal v. Sitaram, AIR 1968 MP 196 (DB).

43.27. Letters Patent appeals were preferred by the decree-holder and the auction-purchaser. Although they were not aggrieved by the actual conclusion reached by the Single Judge (dismissing the appeal of the judgment-debtors), their grievance was that having held that the appeal preferred by the judgment debtors was not tenable, the single Judge was not justified in expressing any opinion on the correctness of the orders passed by the District Judge.

43.28. It was observed that the first question which the single Judge had to consider was, whether the earlier appeal (the appeal preferred by the judgment-debtors) was competent or not; it was only after holding that the appeal was tenable that the Single Judge could have entered into the merits of the orders passed by the District Judge.

43.29. The High Court agreed with the reasoning of the Calcutta case1 referred to above2, where it was observed that when an application under Order 21, rule 90 is dismissed for default, the court does not "refuse" to set aside the sale. Hence, an order dismissing an application under Order 21, rule 90, for default is not appealable under Order 43, rule 1(j). It was observed further, that it is not that a person whose application under Order 21, rule 90 is dismissed for default has no remedy. Such a dismissal by the Court is in the exercise of its inherent powers, and the application can be restored by the court in the exercise of its inherent powers.

1. Rasaratulla v. Rensuddin, AIR 1926 Cal 773.

2. Para. 43.25, supra.

43.30. This appears to be the view likely to prevail, and the matter could be left as it is.



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