JUDGMENT
Page, J.
1. This is an appeal against two orders passed by the learned Subordinate Judge of Howrah on the 18th December 1926, by one of which the learned Judge dismissed the judgment-debtor’s application for an order setting aside an execution sale under Order 21, Rule 90, and by the other he confirmed the sale. Now, the order dismissing the judgment-debtor’s application to set aside the sale was passed upon the application of the opposite party who was present, and urged that the application should be dismissed because neither the applicant nor any pleader on his behalf was present to support it when called for hearing.
2. A preliminary objection was taken to the competency of this appeal upon the ground that the order dismissing the judgment-debtor’s application to set aside a sale under Order 21, Rule 90 was not an order under Order 21, Rule 92, refusing to set aside a sale,” and, therefore, was not within Order 43, Rule 1(j). In my opinion, the preliminary objection fails. In Basaratullah Mean v Reazuddin Mean A.I.R. 1926 Cal. 773. I ventured to observe that:
I am disposed to think that an order dismissing an application to set aside a sale merely on default of appearance of the parties cannot be regarded as in any way confirming the sale. No doubt, if the Court not only dismisses the application but orders that the sale be confirmed, such an order is within Rule 92, and is appealable under Order 43, Rule (1)(j). On the other hand, in dismissing the application for default, when neither party appears on the case being called 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. Such an order, in my opinion, is not appealable under Order 4B, Rule (1)(j). Whether an appeal lies from an order or not in each case must depend upon the construction of the order. In my opinion, where an order is passed dismissing an application to set aside a sale merely on default of appearance by the parties and not on the merits the applicant is not debarred from making a fresh application for the same purpose, if he prefers the application within the time allowed, by the statute of limitation, and the application otherwise is duly made according to the requirements of the law.
3. The position is entirely different where the application under Order 21, Rule 90, is dismissed either on the merits, or where the applicant does not appear but the opposite party appears and is ready to contest the application. In either of those circumstances in my opinion, the order dismissing the application to set aside a sale is an order refusing to set aside a sale within Order 43, Rule 1(j) and in either case the order confirming the sale under Order 21, Rule 92 is ancillary to and follows as of course from the order dismissing the application to set the sale aside. In my opinion, the orders of the 18th December 1926, by which the application to set aside the sale was dismissed and the sale was confirmed were subject to appeal. Upon the merits, in our opinion, the appeal must succeed. It appears that the applicant was desirous of summoning four witnesses in support of his application under Order 21, Rule 90, and deposited diet money sufficient for the purpose. One of the witnesses was duly summoned and accepted the diet money; another refused to accept the diet money, and the remaining two were not served. Subsequently, on the 13th November an order was passed that fresh summons should be issued to the witnesses for the applicant and the hearing of the execution case was adjourned till the 4th December. On the 4th December the applicant presented a petition praying that fresh summonses should be issued to the two witnesses whom hitherto he had been unable to serve, but the-Court rejected his petition upon the ground that
no requisites had been filed and the parties were directed to be ready for the hearing on the 18th December.
4. On that day a petition was presented by a pleader on behalf of the applicant praying that the fresh summonses should be issued upon the two witnesses whose-names were mentioned in the petition and that there should be an adjournment, of the hearing. In his petition the applicant stated that the diet money for these witnesses was on deposit in this Court. That was the fact. Nevertheless, the learned Subordinate Judge passed the following order:
I do not find any sufficient reason to issue summons upon the applicant’s witnesses at this late stage, particularly when diet money for the witnesses is not filed and the opposite party is ready with his many witnesses. The petition appears to be frivolous and no pleader appears to support it. Petition is rejected.
5. Now, it appears that on that morning, after the pleader had lodged his petition during the first hour of the sitting of the Court, he left the Court as the petition could not be heard forthwith, and did not return to the Court until after the midday adjournment, when it was discovered that one of the orders under appeal had been passed in the following terms:
The applicant does not appear though repeatedly called. His pleader is also absent. Case be dismissed with costs. Pleader’s fees Rs. 4.
6. And this order was followed by the other order under review:
Thirty days having expired from the date of sale and the objection having been disallowed, ordered that the sale be confirmed and the execution case be dismissed on part satisfaction.
7. There can be no doubt, having regard to the course of the proceedings, that the learned Judge refused, the petition for an adjournment and fresh service because he came to the conclusion that as no diet money had been duly deposited the applicant was not bona fide prosecuting application. But it not transpires that the diet money had all along been on deposit in Court, and in the circumstances obtaining in this case I do not think that the application ought to have been rejected. At the same time if the applicant or his pleader had remained in Court on the 18th December, and had explained what the real position was, in all probability these proceedings would not have been necessary.
8. The order of the Court is that the appellant must deposit in the executing Court the respondent’s costs incidental to both this appeal and the Miscellaneous Case No. 45 of 1926 within one week from the date of the order assessing the costs in the lower Court. The costs in the lower Court are to be assessed within one week after the arrival of the records and this order in the lower Court. We assess the hearing-fee in this Court at two gold mohurs.
9. If the costs as aforesaid are deposited in the Court below as directed above the appeal will be allowed and the orders under appeal set aside, and the application of the appellant under Order 21, Rule 90 heard according to law. If the said costs are not deposited as aforesaid the appeal will stand dismissed with costs, the hearing-fee being assessed at two gold mohurs.
Graham, J.
10. I agree.
