K. T. Sankaran, J. - (1.) The order dismissing the application filed by the petitioner under Rule 90 of Order XXI of the Code of Civil Procedure is under challenge in this Writ Petition. The Registry noted a defect that the order impugned is appealable and therefore Writ Petition is not maintainable.
(2.) The contention taken by the petitioner is that though the application under Rule 90 of Order XXI was dismissed, there was no order confirming the sale and, therefore, it does not fall within the purview of Rule 92 of Order XXI of the Code of Civil Procedure. Order XLIII, Rule 1(j) says that an appeal shall lie from an order under Rule 72 or Rule 92 of Order XXI setting aside or refusing to set aside a sale. Order XXI Rule 90 of the Code of Civil Procedure provides for an application for setting aside the sale on the ground of irregularity or fraud. Sub-rule (1) of Rule 92 of Order XXI provides that where no application is made under Rule 89, Rule 90 or Rule 91 or where such application is made and disallowed, the Court shall make an order confirming the sale and thereupon the sale shall become absolute. Rule 90 as such does not say that an application is to be either allowed or dismissed. That is stated only in Rule 92. Sub-rule (2) of Rule 92 reads thus: 92. Sale when to become absolute or be set aside: (1).... (2) Where such application is made and allowed, and where, in the case of an application under, Rule 89, the deposit required by that rule is made within sixty days from the date of sale, or in cases where the amount deposited under Rule 89 is found to be deficient owing to any clerical or arithmetical mistake on the part of the depositor and such deficiency has been made good within such time as may be fixed by the Court, the Court shall make aft order setting aside the sale; Provided that no order shall be made unless notice of the application has been given to all persons affected thereby. That is the reason why in Order XLIII, Rule 1(j) instead of Rule 90, mention of Rule 92 is made. That does not mean, that an appeal under Order XLIII, Rule 1(j), would lie only when the sale is confirmed. If the contention rafsed by the petitioner is accepted, it will result in anomalous situation; in a case where sale is confirmed, the party whose application was dismissed under Rule 90 of Order XXI would be able to file an appeal and if the sale is not confirmed, he would have no right to file Appeal till the sale is confirmed. If the contention of the petitioner is accepted, a party who is aggrieved by the order dismissing his application under Rule 90 of Order XXI would have to wait till confirmation of Sale is made. That is not what is intended by Order XLII, Rule 1(j). Confirmation of sale may be delayed due to several reasons. The proviso to Sub-rule (1) of Rule 92 states that where any property is sold in execution of a decree pending disposal of any claim to or any objection to the attachment of, such property, the Court shall not confirm such sale until the final disposal of such claim or objection. The right of a person to file an appeal against the dismissal of his application under Rule 90 cannot be curtailed or delayed on account of the non-confirmation of the sale. Whether confirmation of the sale is made or not, an appeal lies against an order dismissing the application under Rule 90 of Order XXI. An appeal is provided against the order setting aside or refusing to set aside a sale and not against the order confirming the sale.
(3.) The view taken by me is fortified by the following decisions. In Mohammad Ismail Rowthar v. Velayudhan,1964 KerLT 720, a question arose whether an appeal filed before the lower appellate Court against the order confirming sale after dismissing an application under Order XXI, Rule 90 of the Code of Civil Procedure was incompetent. In that case, application under Order XXI, Rule 90 was dismissed on 31-7-1961 and the sale was confirmed on 30-9-1961. The judgment debtor filed an appeal before the lower appellate Court challenging the order dated 30-9-1961. The appeal was allowed. In the Second Appeal, a contention was raised that no appeal did lay against the order confirming the sale and an appeal under Order XLIII, Rule 1(j) was maintainable only against the order dismissing the application under Rule 90. That contention was accepted and it was held that under Order XLIII. Rule 1(j), an appeal is provided against an order dismissing a petition under Order XXI, Rule 90, but not against an order confirming the sale. Similar view taken by the Calcutta High Court in Guru Charan v. Mahendra Chandra,43 CWN 352 was followed by the Division Bench.;