GOPILAL Vs. SITARAM

JUDGEMENT

(1.) THE facts and circumstances in which this Letters Patent Appeal under Clause 10 of the Letters Patent against a decision of Tare J. has been filed are that in execution proceedings of a money decree against the respondent-judgmentdebtors certain property belonging to the judgment-debtors was sold and purchased by the second appellant Rajaram Thereupon, the judgment-debtors filed applications under Order 21, Rule 90 of the Code of Civil Procedure as also under Section 47 of the Code for setting aside the sale. On 5th February 1965 those applications were dismissed by the executing Court for default of appearance of the judgment-debtors. Thereafter, on the same day the judgment-debtors filed applications for restoration of their applications under Order 21, Rule 90 and Section 47 of the Code of Civil Procedure. These applications were also rejected by the District Judge, Sagar, by an order passed on 11th February 1966. The judgment-debtors then filed a revision petition in this Court which was summarily dismissed on 24th February 1966.

(2.) THE judgment-debtors then preferred an appeal in this Court against the order dated 11th February 1966 of the District Judge refusing to restore the judgment-debtors' applications under Order 21, Rule 90 and Section 47 which had been dismissed earlier for default of appearance. Tare J. , who heard the appeal, took the view that in view of the dismissal by this Court on 24th February 1966 of the revision petition filed by the judgment-debtors against the District Judge's order dated 11th February 1966, the appeal preferred by them was not tenable. He observed: "i might have been inclined to entertain an appeal, but for the revisional order passed by this Court". On this view, he dismissed the appeal preferred by the judgment-debtors. In his order dismissing the appeal the learned Single Judge considered the question of the tenability of the appeal with reference to Order 43, Rule 1 (j) and Section 47 of the Code of Civil Procedure He also dealt at length on the question whether the learned District Judge was right in dismissing the judgment-debtors' applications under Order 21, Rule 90 and Section 47 for default of appearance and in refusing to restore those applications. In his opinion, the learned District Judge was not justified in dismissing the objection-petitions for default of appearance or in refusing to restore them.

(3.) THE decree-holder and the auction-purchaser have now preferred this Letters patent Appeal. They are not aggrieved by the conclusion of the learned Single judge dismissing the appeal preferred by the judgment-debtors. Their sole grievance is that having held that the appeal preferred by the judgment-debtors was not tenable, the learned Single Judge was not justified in expressing any opinion on the correctness of the orders passed by the District Judge dismissing for default of appearance the judgment-debtors applications under Order 21, Rule 90 and Section 47 and in refusing to restore those applications and thus opening a door for further proceedings by the judgment-debtors for having those orders set aside.