ANSARALI Vs. BHIM SANKAR DUTTA TEWARI

JUDGEMENT

(1.) This Rule has been issued to show cause why the order of the Subordinate Judge of Noakhali, dated 8 May 1928, refusing to entertain an appeal should not be set aside, or why such other or further order should not be made as to this Court may seem fit and proper.

(2.) The facts necessary to be stated are these. There was an application under Order 21, Rule 90, Civil P.C. filed by the petitioner in the Court of Munsif at Sudhara. On the day fixed for the hearing of this application neither of the parties appeared before the Court with the result that the said application was dismissed for default. Against that order the petitioner preferred an appeal which came up before the Subordinate Judge of Noakhali, and he on 8 May 1928 dismissed the appeal holding that from the order passed by the Munsif no appeal lay tinder the law. , It is against this order of the learned Subordinate Judge that the present rule is directed.

(3.) The question as to whether an order dismissing an application under Order 21, Rule 90 for default is appealable or not has come up for consideration before this Court in a very large number of cases and it has been held, that such an order falls under Order 21, Rule 92, Civil P.C. and as such an appeal lies from it under Order 43, Rule 1(j) of the Code : see e. g. Brojo Sundar Roy V/s. Moti Lal [1910] 14 C.W.N. 573, Kumud Kumar V/s. Hari Mohan Samaddar [1915] 21 C.L.J. 628, and Kali Kanta V/s. Shyam Lal [1917] 25 C.L.J. 163. In one of the more recent decisions of this Court a doubt was . expressed by my learned brother Page, J., as regards the correctness of these decisions. This was the case of Basaratulla Mian V/s. Reazuddin Khan A.I.R. 1926 Cal. 773. In that case none of the parties to the proceedings appeared and upon that the application under Order 21, Rule 90 was dismissed by the Court. On an application for revision being preferred, to this Court. Page, J., was of opinion that the order of dismissal for default passed on an application under Order 21, Rule 90 of the Code is not an order which is appealable unless it also confirms the sale within the meaning of Order 21, Rule 92 of the Code. He, however, distinguished the earlier decisions of this Court to some of which I have already referred upon the ground that in those cases the application had been dismissed for default of the applicant and they were not eases in which both parties were absent. He was able to distinguish those cases upon the ground aforesaid and he held that when both parties are absent and the application under Order 21, Rule 90 is dismissed under circumstances which would correspond to Order 9, Rule 4, Civil P.C. an appeal can under no circumstances lie from such an order of dismissal. The learned Subordinate Judge appears to have followed this decision of Page, J.