Authored By : Thomas William Richardson, Maurice Smither

Thomas William Richardson, J.

1. This is a Rule by which the opposite party was calledupon to show cause why the order of the District Judge of Backergunge, dated the11th March 1916 should not be set aside. The order was made in the followingcircumstances:

In execution of a decree for rent passed on the 29th June1914, the holding in arrears was sold on the 9th March 1915. Thejudgment-debtor then applied under Order XXI, Rule 90, to have the sale setaside. After some adjournments, the learned Munsif in the first Court, on the29th May 1915, directed that the case should come on for final hearing on the19th June 1915, and seated that no further adjournment would be granted. On the19th June 1915, the judgment debtor did not appear and the application to havethe sale set aside, was, therefor, dismissed for default. From that order thejudgment debtor appealed to the District Judge and the District Judge, upon theappeal, made the order complained of.

2. In support of the Rule obtained by the auction-purchaserof the holding, it has been argued that no appeal lay to the District Judge andthat the proper course was for the judgment debtor, the opposite party before us,to apply to the Munsif under Order IX, Rule 9 to have the dismissal order setaside.

3. It may be that it was open to the opposite party to takethat course: Bhuben Behnri Nag v. Dhirendra Nath 33 Ind. Cas. 581 [LQ/CalHC/1916/129] : 20 C.W.N.1203; but it would also seem that if he had taken that course and if hisapplication to have the order of dismissal set aside had been dismissed, hewould have had no right of appeal under Order XLIII (1)(c) of the Code: CharuChandra Ghosh v. Chandi Charan Roy 27 Ind. Cas. 492 [LQ/CalHC/1914/14] : 19 C.W.N. 25. In ouropinion, the course which he actually took, was also open to him. The orderthough it was an order, dismissing the application to have the sale set asidefor default, was still an order within Rule 92 of Order XXI. Under Order XLIII,Rule (1)(j), an order under Rule 92, Order XXI, setting aside or refusing toset aside a sale is appealable. The language of Order XLIII, Rule (1)(i) isthus wide enough to cover a case where an application to have a sale set asideis dismissed for default. In support of ihia position, we may refer to thecases of Brojo Sundar Roy Chowdhury v. Moti Lal Mojumdar 5 Ind. Cas. 493 [LQ/CalHC/1910/7] : 14C.W.N. 573 : 13 C.L.J. 153 and Kumud Kumar Bose v. Hari Mohan Samadar 30 Ind.Cas. 45 : 21 C.L.J. 628. In our opinion, therefore, it cannot be said that noappeal lay to the District Judge, and we are accordingly unable on the groundsuggested to interfere with the order made by him.

4. It is unnecessary to decide whether if the appeal hadcome before us, we should have made the order which the learned District Judgehas made. He has set aside the order of dismissal for default and remanded thecase for the admission of evidence and disposal on the merits. That order wasone which the District Judge had jurisdiction to make and we express no opinionon the question whether his discretion was rightly or wrongly exercised.

5. It was further argued that the application to have thesale set aside was made out of time. That may be so, or it may not. Thequestion is one which it will be for the Munsif to decide when he re-hears thecase. On the materials before us, it would not be right that we should dealwith this point.

6. The result is that the Rule must be discharged. Costswill abide the result. We assess the hearing-fee at three gold mohurs.

Maurice Smither, J.

7. I agree.

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Kali Kanta Chuckerbuttyvs. Shyam Lal Das Basu and Ors.(25.08.1916 - CALHC)