VINOD K.SHARMA, J. - (1.) THE petitioner-judgment-debtors have challenged the order passed by the learned Additional District Judge, Rupnagar, dismissing the appeal filed against the order dated 15.9.2004 passed by the learned Executing Court in dismissing the objections filed by the petitioners under Order 21 Rule 90 of the Code of Civil Procedure as being not competent.
(2.) THE petitioner-judgment-debtors challenged the sale dated 25.2.2003 on the ground that the auction was conducted in violation of law and in violation of the statutory provisions under Order 21 of the CPC. It was claimed by the petitioners that the sale was not property advertised as public at large had no information about the auction. It is also the case of the petitioners that the property worth crores of Rupees has been sold away at throwaway prices. The objections filed by the petitioners were dismissed by the learned Executing Court against which an appeal was preferred which stands dismissed vide impugned order. Mr J.C. Verma, learned senior counsel appearing on behalf of the petitioners contended that the appeal filed by the petitioners was competent under Order 43 Rule 1(g) of the Code of Civil Procedure as the sale conducted the Court is to be confirmed under Order 21 Rule 92 of the Code of Civil Procedure and the said order is admittedly appealable. The learned senior counsel for the petitioners, thus, contended that the learned lower appellate Court committed an error in law in rejecting the appeal as not competent. In support of this contention, the learned senior counsel placed reliance on the judgment of the Hon'ble High Court of Andhra Pradesh in the case of Sheikh Mastan v. Gubba Atchayya, AIR 1959 A.P. 667 wherein it has been laid down as under: "(3) The pertinent question for decision is whether an order dismissing a petition under O. XXI, R 90, C.P.C. Consequent upon the failure to comply with the direction contained in the proviso to that rule, comes within the ambit of O. XLIII, R. 1 (j), C.P.C. which provides : "An appeal shall lie from (j): an order under R. 72 or R. 92 of O. XXI setting aside or refusing to set aside a sale;" The answer to this question depends upon the interpretation of the words "refusing to set aside a sale". There is no separate provision in the Civil Procedure Code conferring a right of appeal upon an aggrieved party whose petition was dismissed in circumstances similar to those as in the present case. It is relevant to note that the proviso which enables the Court to demand the deposit of money into Court before admitting petition was introduced in October 1936, i.e., long after O. XLIII, R. 1 was enacted. It is, therefore, clear that at the time when that rule was framed, such a differentiation could not have been in contemplation. That apart, whatever might be the reason for the dismissal of the petition, there can be little doubt that it amounts to a refusal to set aside a sale. (4) Sri Sambasiva Rao appearing for the respondents seeks to draw a distinction between the final dismissal of the petition on merits and the rejection of it for failure to make the deposit before its admission and relies upon the fact that the Code of Civil Procedure has recognised the distinction between the 'rejection of a plaint' and the 'dismissal of a suit'. But, it cannot be ignored that the Code has made different provisions for filing appeals against the rejection a plaint as also against the dismissal of a suit. As already remarked, the Civil Procedure Code does not contain any provision giving a right of appeal against an order rejecting an application in limine for not making the required deposit. We feel that even a case where an application is dismissed on the ground of non-compliance with the direction to make the deposit, comes within the sweep and range of O. XLIII, R. 1 (j), C.P.C. We are reinforced in our opinion by the judgment of Varadachariar, J. In Marudamuthu Mudaliar v. Venkatarama Iyar, 1939-2 Mad LJ 132 : (AIR 1939 Mad 482). The learned Judge has adduced valid reasons in support of his conclusions, if we may say so with respect. This was followed by King J. in an unreported case (C.R.P. No. 1208 of 1937)."
(3.) THE reliance has also been placed by the learned senior counsel for the petitioners on the judgment of Hon'ble Allahabad High Court in the case of Kedar Nath v. M/s Purushottam Dass Banarsi Das, AIR 1966 Allahabad 188 where the same view has been taken that an order passed under Order 21 Rule 90 is appealable under Order 43 Rule 1 (j). The reliance has also been placed on the judgment of the Hon'ble Madras High Court in the case of Munikrishna Reddy v. S.K. Ramaswami, AIR 1969 Madras 389 holding that appeal against an order passed under Order 21 Rule 90 is competent.;