K P KRISHNAN Vs. JOSEPH JOHN

JUDGEMENT

(1.) The order dismissing the application filed by the petitioner under Rule 90 of Order XXI of the Code of Civil Procedure is under challenge in this Writ Petition. The Registry noted a defect that the order impugned is appealable and therefore Writ Petition is not maintainable.

(2.) The contention taken by the petitioner is that though the application under Rule 90 of Order XXI was dismissed, there was no order confirming the sale and, therefore, it does not fall within the purview of Rule 92 of Order XXI of the Code of Civil Procedure. Order XLIII, Rule 1(j) says that an appeal shall lie from an order under Rule 72 or Rule 92 of Order XXI setting aside or refusing to set aside a sale. Order XXI Rule 90 of the Code of Civil Procedure provides for an application for setting aside the sale on the ground of irregularity or fraud. Sub-rule (1) of Rule 92 of Order XXI provides that where no application is made under Rule 89, Rule 90 or Rule 91 or where such application is made and disallowed, the Court shall make an order confirming the sale and thereupon the sale shall become absolute. Rule 90 as such does not say that an application is to be either allowed or dismissed. That is stated only in Rule 92. Sub-rule (2) of Rule 92 reads thus:

(3.) The view taken by me is fortified by the following decisions. In Mohammad Ismail Rowthar v. Velayudhan,1964 KerLT 720, a question arose whether an appeal filed before the lower appellate Court against the order confirming sale after dismissing an application under Order XXI, Rule 90 of the Code of Civil Procedure was incompetent. In that case, application under Order XXI, Rule 90 was dismissed on 31-7-1961 and the sale was confirmed on 30-9-1961. The judgment debtor filed an appeal before the lower appellate Court challenging the order dated 30-9-1961. The appeal was allowed. In the Second Appeal, a contention was raised that no appeal did lay against the order confirming the sale and an appeal under Order XLIII, Rule 1(j) was maintainable only against the order dismissing the application under Rule 90. That contention was accepted and it was held that under Order XLIII. Rule 1(j), an appeal is provided against an order dismissing a petition under Order XXI, Rule 90, but not against an order confirming the sale. Similar view taken by the Calcutta High Court in Guru Charan v. Mahendra Chandra,43 CWN 352 was followed by the Division Bench.