KALAPARISHAD Vs. STATE BANK OF INDIA

JUDGEMENT

(1.) This appeal is filed by the judgment-debtor in E. P. No. 86 of 1987 in O.S. No. 387 of 1981 in the Court of the Additional Subordinate Judge, Guntur. In execution of the decree obtained by the 1st respondent against the appellant the property of the judgment-debtor/appellant was sold in Court auction on 7-12-1989. The 2nd respondent is the auction purchaser. The judgment-debtor filed an application E.A. No. 40/90 to set aside the sale under O.21, R. 90, C.P.C. That was dismissed for default on 12-6-1991 and the sale was confirmed on 20th June, 1991. The appellant/JDR filed an application E.A. No. 378 of 1991 to set aside the order dismissing E.A. No. 40/90 dated 12-6-1991. That application was dismissed by the lower Court by the order dated 31-7-1991 against which the C.M.A. is filed.

(2.) A preliminary objection is taken regarding the maintainability of the C.M.A. by the learned counsel for the 1st respondent. His contention is that the appeal is not maintainable but only a civil revision petition can be filed. Order 43, Rule l(ja), C.P.C. provides for an appeal against an order rejecting an application under sub-rule (1) of Rule 106 or Order 21 provided that an order on the original application that is to say the application referred to in sub-rule (1) of Rule 105 of that order is appealable. Therefore, the learned counsel for the 1st respondent contends that unless the order in the petition filed to set aside the sale is appealable, no appeal can lie under cl.(ja).

(3.) Order 21, Rule 105, C.P.C. says that the Court before which an application under any of the foregoing rules of this order is pending, may fix a day for the hearing of the application. Sub-rule (2) says that on the day fixed for hearing if the applicant does not appear when the case is called on for hearing, the Court may dismiss the application. Sub-rule (3) says that where the applicant appears and the opposite party to whom the notice has been issued by the court does not appear, the Court may hear the application ex parte and pass such order as it thinks fit. Rule 106 says that the applicant against whom an order is made under sub-rule (2) of Rule 105 or the opposite party against whom an order is passed ex parte under sub-rule (3) of that rule or under sub-rule (1) of Rule 2 may apply to the Court to set aside the order and if he satisfies the Court that there was sufficient cause for his non-appearance when the application was called on for hearing the Court shall set aside the order on such terms as to costs or otherwise as it thinks fit and shall appoint a day for the further hearing of the application. The learned counsel for the 1st respondent has referred to Order 21, Rule 90, C.P.C. which provides for filing an application to set aside the sale on the grounds of irregularity or fraud and contended that as there is no provision for dismissal of such application the dismissal can only be under Section 151, C.P.C. by exercise of the inherent powers of the Court and against such order only a revision lies. Therefore, since that order is not appealable, no appeal can lie against an order dismissing the petition to set aside the default order under cl. (ja) of Order 32, Rule l(i), C.P.C. He has relied on two decisions, one of the Madhya Pradesh High Court reported in Gopilai v. Sitaram, AIR 1968 MP 196 and another a decision of the Kerala High Court reported in Velappan v. Sahasranama, AIR 1980 Ker 12.