GIRINDRA KISHORE BHOWMIK Vs. NANDA LAL SINGH ROY

JUDGEMENT

(1.) THE question raised in this case is whether an appeal lies against an order dismissing an application under Order XXI, Rule 90, Code of Civil Procedure, for non-appearance of the applicant. If the order is one refusing to set aside a sale under Order XXI, Rule 92, Code of Civil Procedure, then an appeal would lie under Order XLIII, Rule 1(j). We think that the order under consideration is an order of that description. A. similar view was taken under the old Code in the case of Brojo Sundar Roy v. Moti Lal Mojumdar 5 Ind. Cas. 493 : 14 C.W.N. 573 : 13 C.L.J. 153, It is true that in that case the order expressly confirmed the sale while dismissing the application for default. In the present case, the sale had already been confirmed; and the Court by this order refused the application to set aside the sale and thereby confirmed its previous order. We think that it amounts to an order under Order XXI, Rule 92, Code of Civil Procedure. We have been referred to the case of Charu Chandra Ghosh v. Chandi Charan Roy 27 Ind. Cas. 492 : 19 C.W.N. 25 and certain other cases in support of the contention that no appeal lies. But in those cases there was an application to set aside the sale which was dismissed for non-appearance, and a subsequent application to revive the application to set aside the sale; and it was held that no appeal lay against the order rejecting the application for revival. Those cases, therefore, do not govern the present case. THE Rule is accordingly made absolute, THE order of the Court below is set aside and the case sent back to that Court for a trial of the appeal on the merits. Costs will abide the result. We assess the hearing fee at one gold mohur.