Sheikh Mastan vs Gubba Atchayya and Others

Chandra Reddy, C.J.—This matter has been referred to a Bench by Ranganadham Chetty J., as he felt a doubt as to the maintainability of an appeal against an order dismissing a petition under Order XXI, Rule 90, C.P.C. for failure to deposit an amount equal to that mentioned in the sale warrant as directed by the lower Court.

The facts of the case may be briefly stated : The properly, which is subject to a charge decree, was brought to sale in execution of a Small Cause Decree for a sum of Rs. 284-15-4 and was sold for Rs. 5,050/-. Complaining that the Court auction, fetched a very low price, the judgment-debtor filed a petition under Order XXI, Rule 90, C. P. C. to set aside the sale. Before admitting She petition the Subordinate Judge, Tenali, required the appellant to deposit a sum of Rs. 3,000/- into Court. As he could not comply with this, the petition was dismissed. The matter was brought up in appeal by the aggrieved judgment-debtor. When it came before Rangana-dham Chetty J., he wanted the matter to be decided by a Bench, as he felt that "the rejection in limine before admitting a petition can by no means be regarded as a dismissal under Order XXI, Rule 92, C.P.C."

The pertinent question for decision is whether un order dismissing a petition under Order XXI, Rule 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 Order XLIII, Rule 1 (j), C. P. C. which provides :

''''An appeal shall lie from

(j): an order under Rule 72 or Rule 92 of Order 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 CPC 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 the petition was introduced in October 1936, i.e.. long after Order XLIII, Rule 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.

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 CPC 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 of a plaint as also against the dismissal of a suit.

As already remarked, the CPC 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 Order XLIII, Rule I (i), C. P. C. We ore re-inforced in our opinion by the judgment of Varadachariar J. in Marudamuthu Mudaliar Vs. N.K. Venkatrama Aiyar, 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).

It follows that an appeal against such an order is competent.

Coming to the merits, we do not think that there is any necessity requiring the appellant in this case to make any deposit. It should be remembered that the property was brought to sale only for satisfaction of a Small Cause decree amounting to Rs. 284-15-4, and a sum of Rs. 5,000/- was realised by sale of the property. The grievance of the appellant is that it is worth very much more. Assuming there is no foundation for this complaint, it is likely to fetch at least a sum of Rs. 5,000/- or at least so much as would cover both decrees even on a re-sale, provided the appellant succeeds in the application. Therefore, we do not think that the interests of justice and the interests of the decree-holder demand a deposit of Rs. 3,000/-.

In the result, the order of the Subordinate Judge calling upon the appellant to make the deposit is set aside the appeal is allowed and the matter is remitted to the lower Court with the direction that it should be taken on file and disposed of on merits as expeditiously as possible. There will be no order as to costs.