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Civil Suit No. 410 of 1948, decided on 27th June 1951.

, O. XXI, R. 92 Petition under R. 90 disallowed in default‑Order has same effect as o f one passed in petition after contest.

The rule does not specify when an application is disallow ed, it should be disallowed only after contest. The disallowing of an application would include also an application which is disallowed due to the non‑appearance of the applicant.

, O. XLIII, R. 1 (j) Order of dismissal of petition under O. 21, R. 90‑Appealable.

An order dismissing an application under Order XXI, Rule 90 of the Code of Civil Procedure for default is appeal able ; such an order falls under Order XXI, Rule 92, and as such an appeal lies from it under Order XLIII, Rule 1, clause (j) of that Code.

, S. 151‑Order appealable‑Interference not justified under S. 151.

An appealable order cannot be interfered with under section 151 of the Civil Procedure Code.

K. M. Hassan, for Petitioner.

Kailuddin Chowdhury, for Opposite‑Parties.

---‑This rule was issued calling upon the opposite parties to show cause why the order of the learned Munsif, 3rd Court, Brahmanbatia, dated the 10th May 1948, rejecting an application under‑section 151 of the Code of Civil Procedure, filed by the petitioner, should not be set aside.

The petitioner filed an application under section 151, Civil Procedure Code to set aside the order of dismissal for default under Order 21, Rule 90 of the Code of Civil Procedure passed on the 17th May 1947. The application was opposed by the opposite parties on the ground that it was not maintainable and that insufficient grounds had been made out for allowing the petition under' section 151, Civil Procedure Code. The learned Munsif, holding that the application was not main tainable has rejected the same.

It appears that the petitioner, who is a judgment‑debtor filed an application under Order 21, Rule 90 of the Code of Civil Procedure for setting aside a sale, and on the date of hearing, namely, 17th May 1947, did not appear and his appli cation was dismissed for default. Mr. K. M. Hassan has appeared on his behalf and has challenged the decision of the learned Munsif on the ground that the learned Munsif acted illegally and with material irregularity in holding that the application under section 151 of the Code of Civil Procedure was not maintainable in view of the fact that the dismissal order for default was appealable., His contention is that the order of dismissal is appealable in those cases only where the application to set aside the sale is contested but not when the application is dismissed for default. Mr. Kafiluddin, appearing for the opposite parties, has argued that the dismissal order for default under Rule 90 is appealable in view of Rule 92 of Order 21 of the Code of Civil Procedure. The rule does not specify that when an application is disallowed, it should be disallowed only after contest. The disallowing of an applica tion would include also an application, which is disallowed due to the non‑appearance of the applicant. In Ansar Ali v. Bhim Shankar Dutta Tewari, I L R 56 Cal. 969, it was held that an order dismissing an application under Order XXI, Rule 90 of the Code of Civil Procedure for default is appealable ; such an order falls under Order XXI, Rule 92, and as such an appeal lies from it under Order XLIII, Rule 1 clause (j) of that Code.

The petitioner has not followed the correct procedure in not filing an appeal from the dismissal order for default. There is authority for the proposition that an appealable order cannot be interfered with under section 151 of the Civil Procedure Code 41 C W N 893.

In view of what has been stated above, the order of the learned Munsif is maintained and the rule is discharged without any order as to costs.

K. M. A. Rule discharged.

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