BROJO SUNDAR ROY CHOWDHURY Vs. MOTI LAL MOJUMDAR

JUDGEMENT

(1.) We are invited in this appeal to set aside an order of the Court below by which an application to set side an execution sale has been disallowed. The sale was held on the 25th May 1907. On the 22 June, following, the judgment-debtor applied to have the sale set aside under Secs.244 and 311 of the Code of 1882. On that day, the Subordinate Judge directed the case to be heard on the 27 July. On the latter day, both the parties were unprepared and upon their joint application, the 24 August was fixed for the hearing of the case. On that date, the decree-holder was present with his witnesses, but the judgment-debtor asked for adjournment to enable him to summon his witnesses. This application was granted upon payment of Rs. 16 as adjournment costs to the decree-holder, and the 14 September was fixed for the hearing of the case. On that date, both the parties were ready to proceed with the case and the witnesses were in attendance, but on account of want of time, the Court was obliged to postpone the hearing till the 23 November. On that date the judgment-debtor applied for adjournment on the allegation that, he was, ill of fever and dysentery, in proof of which, a medical certificate was produced. The Subordinate Judge rejected this application. The case was subsequently called on for hearing and the pleader for the judgment-debtor informed the Court that he had no further instructions in the matter. Thereupon the Subordinate Judge recorded the order, now under appeal, in the following terms: The decree- holder is present with his witnesses. The judgment-debtor's application for setting aside the sale of his property is, therefore, disallowed with costs. The sale is confirmed and the case is dismissed on part satisfaction."

(2.) To the hearing of the present appeal, objection has been taken on the ground that the appeal is incompetent. It would not be necessary for us to deal with, this (preliminary objection seriously but for the insistence with which it has been urged by the learned Vakil for the respondent. He has placed reliance upon the cases of Ningappa V/s. Gangawa 10 B. 433, Raja V/s. Strinivasa 11 M. 319 and Gilkinson V/s. Subramania Ayyar 22 M. 221 in support of his objection. The cases relied upon, however, do not bear out his contention. As observed in the cases of Jung-ud-din V/s. Reaz-ud-din 27 C. 414 and Jungbahadur V/s. Mahadeo Prosad 31 C. 207, these cases merely affirm the doctrine that when an application under Section 311 of the Code of 1882 has been dismissed for non-appearance of the judgment-debtor and a subsequent application under Section 103 of the Code to revive the application under Section 311 has been unsuccessful, no appeal lies against the order of rejection of the application under Section 103. These cases are hot authorities for the proposition that when an application under Section 311 has been dismissed by reason of the non-appearance of the judgment-debtor, no appeal lies against the order by which the application has been disallowed. In fact, even a cursory examination of the provisions of the the Code makes it manifest that such a contention as this cannot be seriously maintained. Section 312 provides that when an application under Section 311 has been disallowed, the Court shall pass an order confirming the sale as regards the parties to suit and purchaser. Section 588, Clause (16), then provides that an appeal lies against an order under Section 312 for confirming or setting aside or refusing to set aside a sale of immovable property. If now we examine for a moment the order of the 23 November 1907, it turns out to be obviously one in terms of Section 312, consequently this appeal is competent. But it has been suggested that this order really consisted of three parts, namely, the preliminary portion which amounts to a dismissal under Section 102 of the Code, and two subsidiary portions which disallowed the application under Section 311 and confirm the sale under that section. This reasoning, however, is entirely fallacious. Even if it is assumed for a moment that the order in question is one made under Section 102 of the Code, an appeal clearly lies against that order, because, as pointed out by this Court in the case of Gosto Behary Sarkar V/s. Hari Mohan Adak 8 C.W.N. 313, an order under Section 102 dismissing a suit is as much a decree as an order under any other section deciding a suit. The order comes within the definition of a decree and is clearly appealable as such." No doubt a contrary view was taken by the High Court of Madras in the case of Gilkinson V/s. Subramania Ayyar 22 M. 221 to which our attention was invited by the learned. Vakil for the respondent. It may be observed, however, that that case was followed iii Amrito Lal Mukherjee V/s. Ram Chandra Roy 29 C. 60 and this latter decision must be taken to have been overruled by implication at any rate, by a Full Bench of this Court in the case of Radhanath Singh V/s. Chandi Charan Singh 30 C. 660. We must, therefore, overrule the preliminary objection.

(3.) In so far as the merits of the appeal are concerned there is no question that the appellant is entitled to succeed. The appellant has not been given an opportunity to prove the allegations made in his application. On the 14 September, he was ready to proceed with the case; but it was for want of time that the Court was unable to hear the case and adjourned it till the 23 November. On that date an application was made for adjournment supported by a medical certificate given by a Hospital Assistant. Possibly the appellant would have acted more prudently if an affidavit had been produced on his behalf. The learned Subordinate Judge, however, did not proceed on the ground of absence of an affidavit. The reasons assigned for his refusal to grant an adjournment were that the medical certificate was not reliable because it was not the certificate of a responsible officer of Government and that as the case was a very old one, an adjournment ought not to be given. In our opinion, neither of these grounds is, under the circumstances of the present case, sustainable and we must hold that the adjournment applied for on the 23 November 1907 should have been granted.