N. D. V. BHAT, J. ( 1 ) THIS revision is directed against the order dated 22-6-1990 passed by the II additional civil judge, belgaum in execution petition No. 268/1985. The facts, leading to the instant revision, are as under: ( 2 ) THE revision petitioners filed an application under order 21, Rule 90 of CPC praying for setting aside the sale held in execution petition No. 268/1985 on the file of the II additional civil judge, belgaum. When the matter was posted for evidence on the said application, it appears that the judgment-debtor filed an application praying for time. The learned II additional civil judge by his impugned order rejected the prayer for adjournment, dismissed the application for setting aside the sale for non-prosecution and confirmed the sale. Hence, the instant revision. ( 3 ) WHEN the matter came up for admissionthe same is taken up for final disposal as desired by the learned advocates appearing for the parties. I have heard the learned advocates on either side. In the light of the submissions made at the bar, the following points arise for consideration: (i) whether the revision petition is maintainable? (ii) what order? ( 4 ) SRI V. Tarakaram, learned counsel for respondent-5 contended that an appeal is provided for under order 43, Rule 1 (j), CPC against an order under order 21, Rule 92, CPC either setting aside the sale or refusing to set aside the sale. It is submitted by Sri Tarakaram that the impugned order will have to be construed as an order refusing to set aside the sale. On the other hand, it was contended by Sri Kalyana Shetty, learned counsel for the petitioners that it is only when the court refuses to set aside the sale on merits that the Provisions of order 43, Rule 1 (j) are attracted and when the application filed under order 21, Rule 90, CPC is dismissed for non-prosecution or for default the same would not attract the said provision at all. It was, therefore, contended by the learned counsel for the petitioners that the revision petition is maintainable. He also contended that the lower court has not applied its mind to the facts of the case at all and simply because an application for adjournment was refused, the same cannot be a ground for dismissing the application for non-prosecution. It was, therefore, contended by the learned counsel for the petitioners that the revision petition is maintainable. He also contended that the lower court has not applied its mind to the facts of the case at all and simply because an application for adjournment was refused, the same cannot be a ground for dismissing the application for non-prosecution. ( 5 ) THE Provisions of order 43, Rule 1 (j) readas under:" (1) an appeal shall lie from the following orders under the Provisions of Section 104, namely: (a) to (h) xxx xxx xxx (j) an order under Rule 72 or Rule 92 of order xxi setting aside or refusing to set aside a sale. "order xxi, Rule 92 (1) reads as under:" (1) where no application is made under Rule 89, Rule 90 or Rule 91, or where such application is made and disallowed, the court shall make an order confirming the sale, and thereupon the sale shall become absolute. "in the instant case it is seen that the application is dismissed for non-prosecution. Whether the learned civil judge was right in doing so is another matter. However, what is required to be seen at this juncture is as to whether the said order can be construed as an Order, refusing to set aside the sale. The authorities on this aspect are not uniform. Some high courts have taken the view that if an application to set aside a sale under order 21, Rule 90 is dismissed for default or for not taking steps, the dismissal is not one refusing to set aside the sale within the meaning of order 43, Rule 1 (j) CPC. On the other hand, some other high courts have taken the view that an order dismissing an application for setting aside the sale under order 21, Rule 92, CPC for non-prosecution falls within the purview of order 43, Rule 1 (j) and as such the same is appealable. Sri Kalyana Shetty, learned counsel for the petitioner has placed reliance mainly on the decision in Velappan and others v Sahasranamam and others, AIR 1980 Kerala 12. Reliance is also placed by him on the decision in I. Balu v Periaswami and others, AIR 1988 Madras 114. Sri Kalyana Shetty, learned counsel for the petitioner has placed reliance mainly on the decision in Velappan and others v Sahasranamam and others, AIR 1980 Kerala 12. Reliance is also placed by him on the decision in I. Balu v Periaswami and others, AIR 1988 Madras 114. On the other hand, Sri Tarakaram, learned counsel for Respondent-5 has placed his reliance on the decision in Ram Pratap Mandal and another v Triloknath, AIR 1957 Patna 465; the decision in Munikrishna Reddy v S. K. Ramaswami and another, AIR 1969 Madras 389; and the decision in Smt. Bimla Devi v Aghore Chandra Mallick and others, AIR 1975 Calcutta 80, as also the decision in Banshidhar Durga Das Dutta v Ishan Chandra Chatterji, AIR 1929 Calcutta 407, in support of his submission that even an order of dismissal of the application for setting aside the sale either for non-prosecution or for default would in substance amount. to the refusal to set aside the sale and that, therefore, it becomes appealable under order 43, Rule 1 (j), CPC. ( 6 ) IN velappan's case, the Kerala high court has pointed out that the 'allowing' or 'disallowing' of an application mentioned in order 21, Rule 92 can only be a disposal on the merits after notice to parties entitled to the same. It is further pointed out in the said case that the dismissal of the application filed under Rule 90 for default in not taking fresh steps cannot be 'disallowing' of the application under Rule 92, CPC and that only by disallowing the application the court refuses to set aside the sale under Rule 92, eventhough the dismissal of the application for default will also result in confirmation of the sale. It is further pointed out that it is the refusal to set aside the sale which is made appealable under order 43, Rule 1 (j) and that, therefore, the order dismissing an application under Rule 90 to set aside the sale for default in not taking fresh steps cannot be said to be one refusing to set aside the sale and therefore is not appealable under order 43, Rule 1 (j ). In l. Balu's case, the Madras High Court has pointed out that order 43, Rule 1 (j) indicates that an appeal would lie only against two categories of orders, viz. In l. Balu's case, the Madras High Court has pointed out that order 43, Rule 1 (j) indicates that an appeal would lie only against two categories of orders, viz. , One setting aside the sale and the other refusing to set aside the sale under order 21, Rule 72 or Rule 92. It is further pointed out in the said case that either of the contingencies would arise only if an application is made to set aside the sale either under order 21, Rule 72 or under Rule 92. Dilating on the same it is pointed out that when the sale is sought to be confirmed under order 21, Rule 92 on the ground that no application to set aside the sale has been made, the question of the court setting aside the sale or refusing to set aside the sale does not arise at all. It was, therefore, held in the said case that an order under order 21, Rule 92 confirming the sale on the ground that no application to set aside the sale has been made would not come within the purview of order 43, Rule 1 (j) and therefore would not be appealable. From what is stated hereinabove it is clear that the ratio in the decision in velappan 's case would support the submission made by Sri Kalyana Shetty, learned counsel for the petitioners. However, the observation of the Madras High Court in l. Balu's case is not of any assistance to the learned counsel to advance the submission made by him. That is so because, as noticed in the said case, neither an application under order 21, Rule 89 nor an application under order 21, Rule 90 or Rule 91 was given in the said case. Since such an application was not given at all, it is pointed out in the said case that the question of allowing or disallowing the said application did not arise at all. Sri Kalyana Shetty, learned counsel for the petitioners, however, contended that in the instant case, having regard to the fact that the application was dismissed for non-prosecution, it will have to be construed that there was no application at all validly filed either under order 21, Rule 89 or Rule 90 of CPC. Sri Kalyana Shetty, learned counsel for the petitioners, however, contended that in the instant case, having regard to the fact that the application was dismissed for non-prosecution, it will have to be construed that there was no application at all validly filed either under order 21, Rule 89 or Rule 90 of CPC. In that view of the matter, it was contended by the learned counsel for the petitioners that the observations of the Madras High Court would apply to the facts of the instant case also. I am unable to agree with the submissions made by the learned counsel. The expression "where no application is made under Rule 89, Rule 90 or Rule 91" cannot be construed as taking within its sweep, even a situation where an application is dismissed for non-prosecution. If one tries to make such an attempt one would indeed strain the language of order 21, Rule 92 of CPC. However, as pointed out earlier, the decision in velappan's case indeed supports the proposition canvassed by Sri Kalyana Shetty. ( 7 ) SRI V. Tarakaram, learned counsel for Respondent-5, however, as pointed out earlier, has placed reliance on the decisions referred to earlier. In the decision in Ram Pratap Mandal and another v Triloknath, AIR 1957 Patna 465, it is pointed out that an order dismissing an application for setting aside a sale under order 21, Rule 90 for non-prosecution falls within the purview of order 43, Rule 1 (j) and as such is appealable. It is further pointed out therein that the result of dismissing the application under order xxi, Rule 90 for non-prosecution is nothing different from disposing of the application on merits and that if the application is disposed of on merits and is dismissed, the result is that the sale is confirmed and likewise, if the application is dismissed for non-prosecution, the result is the same, namely, that the sale is confirmed. In the decision in Smt. Bimla devi v Aghore Chandra Mallick and others, AIR 1975 Calcutta 80, the full bench of the Calcutta high court has pointed out that an appeal lies under order 43, Rule 1 (j) from an order dismissing for default an application under order 21, Rule 90. In the decision in Smt. Bimla devi v Aghore Chandra Mallick and others, AIR 1975 Calcutta 80, the full bench of the Calcutta high court has pointed out that an appeal lies under order 43, Rule 1 (j) from an order dismissing for default an application under order 21, Rule 90. It is also pointed out therein that there is no distinction in principle between an order passed on an application under order 21, Rule 90 dismissing it for default either for the non-appearance of one of the parties or for the non-appearance of both the parties. In the decision in Munikrishna Reddy v S. K. Ramaswami, AIR 1969 Madras 389, the Madras High Court has among other things held as under:"the words, "where such application is made and disallowed" are apt and wide enough to cover a case of the disallowance of the application under order 21, Rule 89, Rule 90 or Rule 91, for whatever cause, whether on merits or for default or for any other reason. Otherwise, it would mean that there is a lacuna in order 21, Rule 92, itself. If those words are not to apply to a case where an application is dismissed for default, and are to be confined to a case where the application is disallowed on merits, it would mean that order 21, Rule 92 does not provide for a case where an application under order 21, Rule 89, Rule 90 or Rule 91 is dismissed for default. The clause, "where no application is made under Rule 89, Rule 90, or Rule 91" cannot possibly apply to case where an application is filed but is dismissed for default. If it is held that such a contingency is not covered by the clause "where such application is made and disallowed", it would mean that order 21, Rule 92 does not provide for such a contingency. Yet it is obvious that even in such a contingency the court should confirm the sale. It is, therefore, clear that the clause in order 21, Rule 92, "where such an application is made and disallowed" will cover not merely a case where an application is disallowed on merits, but will also cover a case where the application is disallowed for any other reason, such as for default. It is, therefore, clear that the clause in order 21, Rule 92, "where such an application is made and disallowed" will cover not merely a case where an application is disallowed on merits, but will also cover a case where the application is disallowed for any other reason, such as for default. " ( 8 ) ON a consideration of the views reflectedin the two sets of decisions referred to hereinabove, I am inclined to agree with the view taken by the Madras and Calcutta high courts. The expression 'disallowed' in Rule 92 will have to be understood in the context of the Provisions of order 21, Rule 92 and order 43, Rule 1 (j ). It is significant to notice that under order 43, Rule 1 (j) the expression used is 'setting aside' or 'refusing to set aside' the sale under order 21, Rule 92, CPC. It is, therefore, clear that 'setting aside' or 'refusing to set aside' is under order 21, Rule 92, CPC. However, it is significant to note that under order 21, Rule 92 (1) the expression 'refusing to set aside the sale' is not used. The expression used is 'where such application is made and disallowed'. It is, therefore, clear that 'disallowing of an application made under order 21, Rule 89, Rule 90 or Rule 91 would be tantamount to the refusal to set aside the sale. The dismissal of an application made to set aside the sale may arise in different ways. It may be due to the fact that the application is dismissed for default; may be for non-prosecution or it may be on merits. However, the hard fact remains that the application is disallowed. If the expression 'disallowed' does not apply to a case where an application is dismissed for default and is to be applied only to a case where the application is disallowed on merits it would mean that order 21, Rule 92 does not provide for a case where an application under order 21, Rule 89, Rule 90 or Rule 91 is dismissed for default. In the Kerala decision alluded to earlier, the decision of the Madras High Court is referred to and a portion of the judgment of the Madras High Court is also culled out. In the Kerala decision alluded to earlier, the decision of the Madras High Court is referred to and a portion of the judgment of the Madras High Court is also culled out. However, it is seen that the reasons given by the Madras High Court to reach its conclusion that disallowing an application would amount to refusal to set aside the sale, no matter in what way the disallowing of the application has been brought about, does not appear to have been adequately analysed by the Kerala high court. Under these circumstances and for the reasons given earlier, I am inclined to adopt the view taken by the Madras High Court. It is also necessary to point out here that Sri Kalyana Shetty, learned counsel for the petitioners has also relied on the observation made by the madhya pradesh high court in Gopilal and another v Sitaram and others, AIR 1968 MP 196 , which is referred to in the Kerala decision. The observations made by the Madhya Pradesh high court and referred to in the judgment of Kerala high court in velappan's case are as under:"in our judgment, the expression 'where such an application is made and disallowed' occurring in Rule 92 means that where such an application is made and rejected. But it is not every order of-rejection that has been made appealable under order 43, Rule 1 (j) but only that order of rejection by which the court on a demand being made by a person to set aside a sale refuses to set aside the sale. This stands to reason as a party who has allowed his application to be rejected by default or for non-prosecution cannot really complain that the court has refused to set aside the sale on a prayer being made by him. The Patna high court has in Rampratap v Triloknath, AIR 1957 pat. 465 , following AIR 1928 Cal 25 (supra) and AIR 1929 Cal 407 (2) (supra), held that an order dismissing an application under order 21, Rule 90 for non-prosecution is appealable under order 43, Rule 1 (j), the reason given being that if the application is disposed of on merits and is dismissed, the result is that the sale is confirmed; likewise if the application is dismissed for non-prosecution, the result is the same, namely, that the sale is confirmed. As we have stated earlier, the question of appealability under order 43, Rule 1 (j) does not depend upon whether the order under order 21, Rule 92 results in the confirmation of the sale but on the fact whether the order is one refusing to set aside the sale or setting aside the sale. It is not necessary to note the decisions of other high courts which are in similar vein. The reasonings given in these decisions, with all respect to the learned judges deciding the cases, do not appear to us to be reconcilable with one another. We would respectfully say that page J. Rightly observed in AIR 1926 Cal 773 (supra) that when an application under order 21, Rule 90 is dismissed for default, the court does not refuse to set aside the sale. In our view, an order dismissing an application for restoring the original application under order 21, Rule 90 is not appealable under order 43, Rule 1 (j ). "however, what is stated with reference to the decision of the Kerala high court would equally apply here also. I have already pointed out earlier as to how the reasons given by the Madras High Court to reach the conclusion which it did are convincing and appear to be more acceptable, than those given in the decisions which have taken a contrary view. ( 9 ) SRI Kalyana Shetty, learned counsel for the petitioners, however, tried to gain some support from the observation made by the Calcutta high court in bimla devi's case, AIR 1975 Cal 80 , made at paras 11 and 12 of its judgment. They read as under:"11. The High Court of madhya pradesh, however, has not accepted the Calcutta high court's view that an appeal lies under order 43, Rule 1 (j) from an order dismissing for default an application under order 21, Rule 90. In AIR 1968 MP 196 (Gopilal v Sitaram) a division bench of the Madhya Pradesh high court has taken the view that no appeal lies under order 43, Rule 1 (j) from an order dismissing an application under order 21, Rule 90 for default. The principal reason for this view is that under order 43, Rule l (j) an appeal lies from an order under Rule 92 of order 21 setting aside or refusing to set aside a sale'. The principal reason for this view is that under order 43, Rule l (j) an appeal lies from an order under Rule 92 of order 21 setting aside or refusing to set aside a sale'. Order 21 is dismissed for default, there is no refusal on the part of the court to set aside the sale. The word 'refusal' means 'a denial or rejection of something demanded or offered'. There can be no refusal unless there is a request or demand. That is why according to the Madhya Pradesh high court, when an application under order 21, Rule 90 is dismissed for default of appearance, there is no refusal to set aside the sale and such an order is not appealable under order 43, Rule 1 (j ). ""12. From a review of all these decisions it appears that the Calcutta high court's overwhelming view is that an appeal lies under order 43, Rule 1 (j) from an order dismissing an application under order 21, Rule 90 for default. It is true that the Madhya Pradesh high court has taken the view that no appeal lies from an order dismissing an application under order 21, Rule 90 for default but in view of the trend of decisions of our court cited above we are inclined to adhere to the view that an appeal does lie under order 43, Rule l (j) against such an order. "on going through the said observations, I do not find anything there which would be of any assistance to the instant revision petitioners to contend that an appeal would not lie against an order like the one which is under revision. ( 10 ) FOR the reasons stated hereinabove, it would follow that the order under revision is an appealable order under order 43, Rule 1 (j), CPC. In view of the same and having regard to the Provisions of sub-section (2) of Section 115, CPC, the revision petition is, therefore, not maintainable. ( 11 ) SRI Kalyana Shetty, learned counsel for the petitioners, however, contended that in the event of this court holding that the revision petition is not maintainable, the revision petition be returned for presentation in the form of an appeal to the court to which an appeal lies. However, the said submission is not tenable. As pointed out by this court in N. Bansidhar v Dwarakalal, 1974 (1) KAR. However, the said submission is not tenable. As pointed out by this court in N. Bansidhar v Dwarakalal, 1974 (1) KAR. L. J. 405, where a revision petition itself is not maintainable under Section 115, CPC, no question of returning it for presentation in the form of an appeal to the court to which such appeal lies arises. The benefit of Rule 10 or order 7, CPC, cannot be extended to such cases, because it is inconsistent with the principle underlying the said rule. When a petition or this type cannot be represented in its existing form in any court, the question of returning it for presentation to the proper court in the form of an appeal does not arise at all. However, the revision petitioners are at liberty to prefer an appeal before an appropriate forum if they are so advised. ( 12 ) FOR the reasons stated hereinabove, this revision petition is h'able to be dismissed as not maintainable. Accordingly, the revision petition is dismissed as being not maintainable. Petition dismissed. --- *** --- .