JUDGMENT
Mukerji, J.
1. This Rule has been issued to show cause why the order of the Subordinate Judge of Noakhali, dated 8th 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 8th 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. Moti Lal [1910] 14 C.W.N. 573, Kumud Kumar v. Hari Mohan Samaddar [1915] 21 C.L.J. 628, and Kali Kanta v. 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. 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.
4. The petitioner’s contention is that even in a case when the order of dismissal was passed on account of default of appearance on the part of both the parties to the proceeding, an appeal is maintainable under Order 43, Rule 1(j), in view of the fact that such an order comes within the per-view of Order 21, Rule 92 of the Code. There is a decision of this Court, though not reported, passed in appeal from order No. 285 of 1922 and rule No. 659-M of 1922 in which it appears that it was held that an appeal does lie from such an order. There is also another decision of this Court in the case of Narendra Nath v. Rakhal Das , which was a case in which the Court disallowed, the prayer of an application in a proceeding under Order 21, Rule 90 for time and when neither of the parties to the proceeding was present dismissed the application and confirmed the sale, and it was held that such an order was appealable under Order 43, Rule 1(i) of the Code. The last mentioned case no doubt is distinguishable from the case now before us, because here it does not appear that although the application was dismissed for default there was any formal order recorded confirming the sale-
5. The question therefore is whether when no such formal order has been recorded confirming the sale and the application under Order 21, Rule 90 has been dismissed for default for non-appearance of both the parties to the proceeding, the order of dismissal passed under those circumstances is open to appeal. It appears that in the Code of 1882, Section 312 which corresponds to Order 21, 92 of the Code of 1908 ran in these words:
If no such application as is mentioned in the last preceding section be made, or if snob application be made and the objection be disallowed the Court shall pass an order confirming the sale as regards the parties to the suit and the purchaser.
6. Section 588 of that Code which corresponds to Order 43 of the present Code And provided for appeals from orders in its Clause (16) enacted that:
orders under Section 294 and orders under Section 312 and orders under Section 313 for confirming or setting aside or refusing to set aside a sale or immovable property etc.
7. In the present Code Order 43, Rule 1(i) speaks of an order under Rule 72 (with which we are not concerned) or Rule 92, Order 21, setting aside or refusing to set aside a sale. It appears therefore that the words” for confirming” which were to be found in Section 588, Clause 16 have been dropped out. The obvious intention of the legislature was not to treat an order confirming a sale as one distinct in its essence from an order dis-allowing an application under Order 21, Rule 90. This intention appears to be further clear from the fact that Order 21, Rule 92 says that where no application is made under Rule 89, Rule 90 or Rule 91 or where such an application is made and disallowed the Court shall make an order confirming the sale and thereupon the sale shall become absolute. It is the disallowing of the application made under Order 21, Rule 90 which corresponds to the order refusing to set aside a sale within the meaning of Order 43, Rule 1 Clause (j). The fact that a distinct order has not been recorded confirming the sale does not alter the character of the order disallowing an application under Order 21, Rule 90 and it is this last mentioned order that is appealable by reason of the provisions of Order 43, Rule 1, Clause (j). My learned brother Page, J., was prepared to make a distinction between orders passed for default of appearance on the part of both the parties and orders passed for default of appearance of one of the parties only, and he observed that in dismissing an application for default when neither party appears on the case being called on 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. With all respect I should say that this distinction, in my judgment, really makes no difference in the result because the statutory consequence of the disallowing of the application is the confirmation of the sale at least to the extent covered by the application. In my opinion it is not correct to draw any conclusion from the analogy furnished, by the provisions of Order 9, Rule 4 and Order 9, Rule 9 because the provisions of Order 9 have got no application to a case under Order 21, Rule 90, Civil P.C. I am of opinion that there is no distinction in principle between an order passed on an application under Order 21, Rule 90 dismissing it for default either for non-appearance of one of for non-appearance of both the parties, and the principle upon which the other decisions to which I have referred above proceed, is in my opinion, equally applicable to a case of the present nature. For these reasons I am of opinion that this Rule should be made absolute. The order against which it is directed is accordingly set aside and it is ordered that the learned Subordinate Judge should proceed to entertain the appeal and deal with it in accordance with law.
8. As there is no appearance for the opposite party in this rule there will be no order for costs.
Mitter, J.
9.I agree.
