KONATI SWAMANNA Vs. GOLLA VENKATASWAMY

JUDGEMENT

(1.) Heard the learned counsel for the parties. Perused the material placed before me. This revision is directed by the petitioner against the order dated 6.12.2004 passed in CFR No.3046 of 2004 in an unregistered CMA, which was filed under Order XLIII Rule 1(j) of CPC, on the file of the Court of Senior Civil Judge, Nandikotkur, aggrieved by the order and decree passed on 29.10.04 by the trial Court in EA.No.148 of 2004 in E.P.No.70 of 2003 in O.S.No.31 of 2001.

(2.) The facts of the case appear to be that the petitioner filed an application before the executing Court under Or. XXI Rule 90 CPC and the same was dismissed by an order dated 29.10.2004 after conducting an enquiry. The said order was challenged by way of an appeal before the lower appellate Court under Order 43 Rule 1(j) CPC, but, it seems that the same was rejected on the ground that no appeal lies against the order passed in an application under Order Or. XXI Rule 90 CPC. Order XLIII Rule 1(j) reads as under: An appeal shall lie from: j) An order under R.72 or R.92 of O. XXI setting aside or refusing to set aside a sale.

(3.) It is obvious from the above provision that rule 90 was not mentioned, in which event, a bare reading of the said provision gives an impression that an appeal is not maintainable as objected to by the lower appellate Court. Now the question is whether an appeal is maintainable under Or. XLIII Rule 1(j) when the application filed by the petitioner before the executing Court under Order 21 Rule 90 CPC was dismissed. This question is no longer res-integra in view of the judgment rendered by a Division Bench of this Court in Sheikh Mastan Vs. Guba Atchayya and Others (AIR 1959 AP 1667 (V 46 C 195). The important excerpts thereof are extracted hereunder for ready reference: