SHEIKH MASTAN Vs. GUBBA ATCHAYYA

JUDGEMENT

(1.) This matter has been referred to a Bench by Ranganadham Chetty J., as he felt a doubt as to the maintainability of an appeal against an order dismissing a petition under Order XXI, Rule 90, C.P.C. for failure to deposit an amount equal to that mentioned in the sale warrant as directed by the lower Court.

(2.) The facts of the case may be briefly stated : The properly, which is subject to a charge decree, was brought to sale in execution of a Small Cause Decree for a sum of Rs. 284-15-4 and was sold for Rs. 5,050.00. Complaining that the Court auction, fetched a very low price, the judgment-debtor filed a petition under Order XXI, Rule 90, C. P. C. to set aside the sale. Before admitting She petition the Subordinate Judge, Tenali, required the appellant to deposit a sum of Rs. 3,000.00 into Court. As he could not comply with this, the petition was dismissed. The matter was brought up in appeal by the aggrieved judgment-debtor. When it came before Rangana-dham Chetty J., he wanted the matter to be decided by a Bench, as he felt that "the rejection in limine before admitting a petition can by no means be regarded as a dismissal under Order XXI, Rule 92, C.P.C."

(3.) The pertinent question for decision is whether un order dismissing a petition under Order XXI, Rule 90, C. P. C. consequent upon the failure to comply with the direction contained in the proviso to that rule, comes within the ambit of Order XLIII, Rule 1 (j), C. P. C. which provides : An appeal shall lie from (j): an order under Rule 72 or Rule 92 of Order XXI setting aside or refusing to set aside a sale;" The answer to this question depends upon the interpretation of the words "refusing to set aside a sale". There is no separate provision in the Civil Procedure Code conferring a right of appeal upon an aggrieved party whose petition was dismissed in circumstances similar to those as in the present case. It is relevant to note that the proviso which enables the Court to demand the deposit of money into Court before admitting the petition was introduced in October 1936, i.e.. long after Order XLIII, Rule 1 was enacted. It is, therefore, clear that at the time when that rule was framed, such a differentiation could not have been in contemplation. That apart, whatever might be the reason for the dismissal of the petition, there can be little doubt that it amounts to a refusal to set aside a sale.