N DEVAMMA Vs. M AKKAMMA

JUDGEMENT

(1.) Heard Sri K. Rathanga Pani Reddy, the counsel appearing for the petitioner.

(2.) The revision petitioner is judgment debtor No.2 in E.P. No.687 of 2002 in O.S. No.70 of 2002 on the file of the Principal Junior Civil Judge, Kurnool. The petitioner moved E.A.No.1505 of 2004 under Order XXI Rule 90 and Section 47 of the Code of Civil Procedure with a prayer to set aside the sale held on 24-6-2004 or such other suitable relief.

(3.) It is not in serious controversy that this order does not fall under Section 47 C.P.C. and this is an order falling under Order XXI Rule 90 C.P.C. The learned counsel, no doubt made an attempt to convince the Court that the present civil revision petition is maintainable in view of the fact that Order 43 Rule 1 (j) of the Code of Civil Procedure specifies an appeal as against the order under Rule 72 or Rule 92 of Order XXI C.P.C. This Court is not inclined to accept with the said submission for the following reasons. Order 43 Rule 1 (j) of the Code of Civil Procedure specifies that an appeal shall lie from the following orders under the provisions of Section 104 viz., an order under Rule 72 or Rule 92 of Order XXI setting aside or refusing to set aside a sale. Order XXI Rule 90 C.P.C. deals with set aside application on the ground of illegality (sic. irregularity) and fraud. Order XXI Rule 92 C.P.C. deals with the sale when became absolute or set aside. In Marudamuthu Mudaliar v. N.K. Venkatrama Ayyar Justice Varadachariar while dealing with this question observed that: "There can be little doubt that at the time when the sub-clauses of O.43, R.1 were framed, this distinction between an order on the petition and an order declining to entertain the petition could not have been thought of, so far as applications under O.21, R.90 are concerned. A distinction was recognized by the Code in the case of plaints: and different provisions were made for appeals against adjudications on the merits and appeal against orders rejecting the plaint. But as the scheme of the Code as it originally stood did not contemplate any such differentiation in respect of an application under Rule 90 of O.21, it is unreasonable to expect any recognition of that distinction in the rules relating to appeals therefrom. When the proviso now in question was recently added to R.90, the attention of the framers of the Rule does not appear to have been specifically directed to the question of appealability. There has indeed been some discussion as to the legality of the proviso itself; but this Court has so far declined to hold the new Rule to be ultra vires. While I follow that ruling, I do not wish to deprive the petitioner of whatever benefit he may get, even if it be a mere matter of accident, out of the language of sub-cl.(j) of O.43 R.1, as it stands. The position, so far as the present case is concerned, is different from what may arise in cases where a right of appeal will be available only by treating any disposal as amounting to a 'decree' because in that case the Court has to consider, in view of the definition of the word 'decree' whether there has been an adjudication determining the rights of the parties. An order merely rejecting a plaint will thus not prima facie fall within the definition of 'decree'. But sub-cl.(j) of O.43, R.1, merely refers to an order refusing to set aside a sale". The learned Judge thinks that such an order of refusal prima facie implies that the petition had been admitted. As I have already pointed out, this question could never have arisen under the scheme of the Code as it formerly stood. I cannot therefore call in aid any, argument founded upon the probable intention of the Legislature. I have only to see whether the etymological meaning of the words found in the sub-clause will or will not apply to the case. If a person applies to have a sale set aside I do not see how a rejection of his petition is any the less a refusal to set aside the sale because the Court passed that order even before admitting the petition. After all, on an appeal against such an order, the Appellate Court can only consider the reasonableness or otherwise of the order refusing to admit the petition; and I prefer not to deprive the petitioner of the right to seek the opinion of the Appellate Court in the matter, unless it is possible to hold that the language of O.43, R.1(j) is clearly incapable of being construed as comprehending the order of rejection."