1. This Rule was obtained against an order of the learned Munsif purporting to have been made under Order IX, rule 9 of the Civil Procedure Code, in a Misc. Case No. 69 of 1966 restart--ing the Original Misc. Case No. 129 of 1963filed under Order XXI, rule 90, C. P. Code, It appears that the judgment-debtor-- opposite-parties filed an application under Order XXI, rule 90, C. P. C. To set aside a sale of immovable property which was held in Money Exh. Case No. 6 of 1963. The sale was held on 6th June 1963, and was confirmed on 11th of July 1963, and delivery of possession was obtained on 16th of August 1963. The application for setting aside the sale was filed on 12th of September 1963. Thereafter the auction-purchasers took successively two appeals from interlocutory orders passed by the learned Munsif. The second appeal was disposed of by the Appellate Court on 26-1-1966. It appears that the records were received back on 13-1-1966. But no intimation was sent to the pleader of the petitioner before the trial Court. On 12-2-1966 the r Court passed an order in presence of the opposite-parties directing the petitioner to supply the correct address of the natural guardian of the minor opposite-parties and to supply the requisites and the case was adjourned to 15-2-1966 but it does not appear that the order was communicated to the pleader of the petitioner in the trial Court. On 15-2-1966 the failure to furnish the requisites by the petitioner is recorded and a direction was given to show cause by 19-2-1966 as to why the case shall not be disposed of for non-compliance of the order of 12-2-1966. This order was also not shown to the lawyer for the petitioners in the trial Court. On 19-2-1966 the opposite-parties were present by filing hazira but the petitioners were not present and did not show any cause or take any steps and it was ordered that the Misc. Case be dismissed for default. Thereafter on 1-4-1966 an order of awarding cost was drawn up. It appears that thereafter the petitioner came to know of the ex parte dismissal of their case under Order XX1, rule 90, C. P. C. And they filed an application under Order IX, rule 9, C. P. C. On 17th April 1966. After several adjournments and examination of witnesses the trial Court came to the con--clusion that the petitioner before it had been able to show sufficient cause for not being present on the day the ex parte order dismissing the application for default was made and restored the original Misc. Case to file by an order dated 18- 2-1967. Against the said order the present rule has been obtained.
2. Mr. Abdur Rahman Chowdhury appearing on behalf of the petitioner has argued that the whole proceeding under Order IX, rule 9 was without jurisdiction, inasmuch as there is no scope for applying the provisions of Order IX, rule 9, of the C. P- Code --to a proceeding under Order XXI, rule 90, C. P. C. He relied on the Privy Council decision in the case of Thakur Prosad v. Sheikh Fakirulla and another (22 I A 44). This case has been followed consistently in the Culcutta High Court. For instance, in the case of Basa Atull Mean and others v. Reazuddin Mean and others (30 C W N 570), Mr. Banik on the other hand, cited, AIR 1919 Pat. 192-F, in the case of Bhubunesswar Prasad Singh and others v. B. Tilakdharl Lal and others (A T R 1919 Pat. 192-F) and also a Calcutta decision vie., 14 Cal. 1466 Mr Mantic relied on the case of Kamini Debi v. Promotha Nath Mukharjee and another (19 C W N 755), which according to him is the correct way of looking on the question and he has also relied on the case reported in the case of Munser Ahmad v. Dakshina Ch..,indra Sen and others (PLD 1960 Dacca 130) and as well as on the case of Afzal Hossain Talukdar v. Ainuddin Sarkar and others (PLD 1964 Dacca 155). Before I take up the discussion of the cases cited before me I would like to quote section 141 of the C. P. C. Which only would make applicable the provisions of Order IX, rule 9 to the present proceedings. Section 141, C. P. C. Reads as follows " Miscellaneous proceedings.-The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of Civil Jurisdiction."
3. The section does not apply to applications for execution of decrees which are proceedings in suits.
4. The Legislature had expressed clearly in the earlier legislation that the provisions of section 141 will not be applicable to the applications for the execution of decrees and it had in the same breath stated that such application for execution would be proceedings in suits. The wordings of the substantive section that is the present section 141 and the provisions of section 17 are clear to the effect that the provisions which were incorporated in the code and which would be applicable to suits under the Code would be followed as far as it could be made applicable in all proceedings in any Court of Civil Jurisdiction. Obviously it means that so far as the suits under the Code is concerned they were governed by the provisions of the Code, and so far as the suits not covered by the Code are concerned, the provisions of the Code would be made applicable to those proceedings as far as it could be made applicable. The Privy Council in the said decision has clarified the intention of the Legislature in the following words: "Their Lordships think that the proceedings spoken of in section 647 include original matters in the nature of suits such as proceedings in probates, guardianships, and so forth, and do not include executions" I do not see why this simple language of the section has given rise to so much controversy. Order IX, rule 9, is a provision in the Code itself. If the Legislature had thought fit to make it applicable to execution proceedings also it would have said so. As their Lordships have held so far as the execution proceedings are concerned there were in the previous Code as many as 121 sections and so far the present Code is concerned there are 103 Rules. Therefore the Legislature, has, so far as the execution of a decree passed in a suit under he C. P. C., made elaborate provisions. It did not make a provision like Order IX. Rule 9 applicable to the execution proceedings as it could easily have done. To my mind referring to section 141 of the Code to make available a provision in the Code itself, namely Order IX, rule 9 to execution proceedings of a suit under the Code would be against the intention of the Legislature. Section 141 clearly refers to proceedings other than suit covered by the C. P. C. As clarified by the Privy Council in the said judgment. If any other law makes provisions which do not give the litigants B some of the advantages in a suit under the C. P. C., the provisions would be available to the litigant in those proceedings by virtue of the provision of section 141, C. P.
5. C. That is the only interpretation which is possible so far as section 141, C. P. C. Is concerned. To make the provisions of Order IX available to proceeding under section 174 of the B. T. Act does not require any investigation as the B. T. Act has not provided a similar remedy. I do not see any reason why the provisions of Order IX could not be made available to an application under the B. T. Act as section 141, C. P. C. Clearly indicates that they would be applicable. Both the cases in 11 D L R and PLD 1964 Dacca 155 relate to proceedings under the B. T. Act. There is no difficulty in applying the provisions of Order IX to the proceedings under the special Act viz. The Bengal Tenancy Act. My learned brother Mr. Justice Chowdhury has sought in the case reported in 11 D L R to make a distinction between an application which was filed prior to the sale being confirmed under Order XXI, rule 92 and one made thereafter. In his opinion section 141 will not entitle a litigant to apply the provisions or Order IX if the sale had not yet been confirmed. But in his opinion if the sale has been confirmed and thereafter an application for setting aside is made would be an original proceedings as there was nothing left in the execution proceedings and therefore the provisions of Order IX could be invoked taking help of section 141 of the C. P. Code. But this argument over-- looked two factors, first that once the application under Order XXI, rule 90 is allowed the whole execution proceeding would be reopened, the sale having been set aside. Therefore an application under Order XXI, rule 90 whether it is made before the sale was confirmed or not is an application relating to the exe--cution of a decree in a suit under the C. P. Code. Secondly the argument overlooks the fact that a proceeding under Order XXI, rule 90 is a proceeding in relation to a suit covered by the C. P.I Code. Therefore, only the provisions of C. P. Code will apply to it and if the Civil Procedure Code omitted to make applicable the D provisions under Order IX to execution proceedings one cannot do so by invoking the provisions of section 141, C. P. C. Thus in my opinion Mr. Abdur Rahman Chowdhury's argument must be accepted and it must be held that the entire proceedings purported to have been made under Order IX, rule 9, C. P. C. Was without jurisdiction.
6. But that does not mean that the petitioner in the trial Court that is the judgment-debtor opposite-- party before me are to be left without any remedy. It is obvious that they have up to now pursued a wrong remedy but they have done so bona fide and with diligence. Therefore, the provisions of section 14 of the Limitation Act would be available to the opposite-parties. That will take them back to the date of filing of the Misc. Case No. 60 'of 1965 that is, 27th April 1966. In the case of Basharathulla v. Reazuddin Khan (30 C W N 570), their Lordships have held that the applicants in that case, also under Order XXI, rule 90, C. P. C., were not without remedy as they would be entitled to file a fresh application for setting aside a sale under Order XXI, rule 90, C. P. C. But even allowing the provisions of section 14 of the Limitation Act their application under order XXI, rule 90, C. P. C.
7. Would be barred in my opinion and there would be no ground for pleading extension of time under section 18 of Limitation Act. In my opinion the proper remedy would be in an appeal under Order XLIII, rule 1 (j), C. P. C. Against the order dismissing the application under Order XXI, rule 90. That such appeal lies has been held in the case of Ansarali v. Bhim Sandar Dutta Tawari (23 C W N 392) as well as in the case of Basanta Kumar Adak v. Khirode Chandra Ghosh (I L R 55 Cal. 616). 1 respectfully follow the decision in those two cases and hold that an appeal lies from an order rejecting an application under Order XXI, rule 90, C. P. C. And as such a remedy would be available to the petitioners read with section 5 of the Limitation Act. 1, therefore, make the rule absolute and set aside the impugned order of the learned Munsif. There will be no order as to costs.