1. These two applications arise out of proceedings for thesetting aside of a certain Court sale.

2. The sale was held on the 22nd April 1912 and wasconfirmed on the 23rd of May of that year.

3. Sometime towards the close of 1913 the judgment-debtor appliedunder Order XXI, Rule 90, to have the sale set aside.

4. This application came on for hearing on the 25th July1914 when both parties, i.e., the judgment-debtor and the auction-purchaserapplied for time. Both applications were rejected, and the petitioner taking nofarther steps his application was dismissed for default.

5. On the 28th July, the petitioner applied that the ordershould be reviewed and his application for setting aside the sale restored.This application for review or restoration was dismissed or rejected on the15th January 1915.

6. Against both orders of rejection or dismissal appealswere preferred to the District Judge. Both appeals were decreed on the 25thJuly 1915.

7. The auction-purchaser has now obtained the present Rulecalling upon the opposite parties to show cause why the District Judges ordersshould not fee set aside on the ground that in neither case did an appeal lie.

8. In support of the Rule, it is first contended that theorder dismissing the application to set aside the sale was made in the absenceof both parties. If so, and if the provisions of Order IX apply, the order wasone under Order IX, Rule 3, and the application to have it set aside was oneUnder Order IX, Rule 4. Against an order rejecting an application under OrderIX, Rule 4, Order XLIII provides no appeal.

9. We are unable to accede to this contention. No doubt inthe first Courts order of the 28th July dismissing the application for settingaside the sale, it is stated that both parties had been in default. But by partof the same order an application made by the opposite party (theauction-purchaser) is rejected. The inference is that he was present. Nosuggestion to the contrary appears to have been made in the Court of Appeal andon what after all is a question of fact we do not think that we should differfrom the District Judge.

10. It follows that if the provisions of Order IX apply toapplications for setting aside sales, the application in the present case wasdismissed under Order IX, Rule 8, and the application to have that dismissalset aside was made and rejected under Order IX, Rule 9.

11. The question in the Rule then is whether by virtue ofthe provision of Order IX, Rule 9, and of Order XLIII, Rule 1, Clause (c) anappeal lies against an order refusing to restore an application made underOrder XXI, Rule 90, and dismissed for default.

12. We can see no reason in principle why Order IX, Rule 9should not be held applicable to applications for setting aside sales and insupport of the view that the rule does apply in such cases we have directauthority in Diljar Mikha Bibi v. Hemanta Kumar Roy (2) and in Safdar Ali v.Kishun Lal (3). We, therefore, hold Order IX, Rule 9, to be applicable.

13. The next question then is whether Order XLIII, Rule 1,Clause (c), confers a right of appeal against an order made under Order IX,Rule 9, refusing to restore an application for the setting aside of sale. Inother words, the question is whether for the purpose of Order XLIII Rule 1(c),an application for the setting aside of a sale is a suit.

14. There can be no doubt, we think, that an application toset aside a sale is a proceeding which may terminate in an adjudication such asis referred to in Section 2 of the Code, and if the question had been resintegra we should have been prepared to hold that it was a suit within themeaning of Order XLIII. Rule 1. Clause (c).

15. But in a series of cases of which the latest is CharuChandra Ghosh v. Chandi Charan Roy (1) the contrary view has been taken and inthe present case, as it is open to us to interfere under Section 115 of theCode, we are not disposed to make a reference to the Full Bench.

16. From the order of the District Judge it is clear that indismissing and again in refusing to restore the application, the Munsif erredin attributing to the applicant a default or laches which was in fact thedefault or laches of the Court and its officers. Proceeding, therefore, in ourrevisional jurisdiction we adopt as our own the order made by the SubordinateJudge on the 22nd July 1915, in so far as it sets aside the orders made by theMunsif on the 25th July 1914 and 15th January 1915, and direct that the Munsifdo now proceed to hear the application for setting aside the sale, anddetermine the same on the merits. Costs in all Courts will abide the result. Weassess the hearing fee in this Court at two gold mohurs.

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Bhuben Behari Nag Mazumdarvs. Dhirendra Nath Banerjee and Ors.(28.03.1916 - CALHC)