HAJI MOHAMMAD KAZIBULLA MONDAL Vs. HUMAYUN REZA CHAUDHURY

JUDGEMENT

(1.) The only point for decision which arises in connexion with this rule is whether or not an appeal lies against the order of the learned Munsif of Jangipur, dated 2 June, 1937, by which he dismissed for default an application to set aside a Civil Court sale under Section 174, Ben. Ten. Act. The view taken by the learned Subordinate Judge of Murshidabad in his order dated 14 June 1937 is that no appeal lay against the order of the learned Munsif.

(2.) The learned advocate for the opposite parties places some reliance upon a decision of Mukherjee J. in Debrani Debya V/s. Sarat Kumar Roy in which the learned Judge held while sitting singly, that an order dismissing for non-prosecution an application for setting aside an execution sale under Section 174, Ben. Ten. Act was not appealable. In that case however, Mukherjee J. gave no reasons for coming to this conclusion and he proceeded to deal with the matter before him under Section 115, Civil P.C.

(3.) In a later case, namely in Basaratulla Mean V/s. Reajuddin Mean (1926) 13 AIR Cal 773 Page J. recorded certain observations to the effect that in dismissing an application for default when neither party appears on the case being called for hearing, the Court does not refuse to set aside the sale, but in the absence of the parties refuses to consider whether the sale should be set aside or not. Such an order in the opinion of the learned Judge is not appealable under Order 43, Rule 1 (i), Civil P.C. In the following year Page J. was a party to another decision of this Court in Basanta Kumar V/s. Khirode Chandra . In that case his Lordship referred to the observations which he had recorded in Basaratulla Mean V/s. Reajuddin Mean (1926) 13 AIR Cal 773, but he remarked that: The position is entirely different where the application under Order 21, Rule 90, is dismissed either on the merits, or when the applicant does not appear but the opposite party appears and is ready to contest the application. In either of those circumstances, in my opinion, the order dismissing the application to set aside the sale is an order refusing to set aside a sale.