P. S. NARAYANA, J. ( 1 ) HEARD Sri K. Rathanga Pani Reddy, the counsel appearing for the petitioner. ( 2 ) THE revision petitioner is judgment debtor No. 2 in E. P. No. 687 of 2002 in O. S. No. 70 of 2002 on the file of the Principal junior Civil Judge, Kurnool. The petitioner moved E. A. No. 1505 of 2004 under order XXI Rule 90 and Section 47 of the code of Civil Procedure with a prayer to set aside the sale held on 24-6-2004 or such other suitable relief. ( 3 ) IT is not in serious controversy that this order does not fall under Section 47 C. P. C. and this is an order falling under Order XXI rule 90 C. P. C. The learned counsel, no doubt made an attempt to convince the court that the present civil revision petition is maintainable in view of the fact that Order 43 rule 1 (j) of the Code of Civil Procedure specifies an appeal as against the order under Rule 72 or Rule 92 of Order XXI c. P. C. This Court is not inclined to accept with the said submission for the following reasons. Order 43 Rule 1 (j) of the Code of Civil procedure specifies that an appeal shall lie from the following orders under the provisions of Section 104 viz. , an order under Rule 72 or Rule 92 of Order XXI setting aside or refusing to set aside a sale. Order XXI Rule 90 C. P. C. deals with set aside application on the ground of illegality (sic. irregularity) and fraud. Order XXI rule 92 C. P. C. deals with the sale when became absolute or set aside. In marudamuthu Mudaliar v. N. K. Venkatrama ayyar Justice Varadachariar while dealing with this question observed that: "there can be little doubt that at the time when the sub-clauses of O. 43, R. 1 were framed, this distinction between an order on the petition and an order declining to entertain the petition could not have been thought of, so far as applications under O. 21, R. 90 are concerned. A distinction was recognized by the Code in the case of plaints: and different provisions were made for appeals against adjudications on the merits and appeal against orders rejecting the plaint. A distinction was recognized by the Code in the case of plaints: and different provisions were made for appeals against adjudications on the merits and appeal against orders rejecting the plaint. But as the scheme of the Code as it originally stood did not contemplate any such differentiation in respect of an application under Rule 90 of O. 21, it is unreasonable to expect any recognition of that distinction in the rules relating to appeals therefrom. When the proviso now in question was recently added to r. 90, the attention of the framers of the rule does not appear to have been specifically directed to the question of appealability. There has indeed been some discussion as to the legality of the proviso itself; but this Court has so far declined to hold the new Rule to be ultra vires. While I follow that ruling, I do not wish to deprive the petitioner of whatever benefit he may get, even if it be a mere matter of accident, out of the language of sub-cl. (j) of O. 43 R. 1, as it stands. The position, so far as the present case is concerned, is different from what may arise in cases where a right of appeal will be available only by treating any disposal as amounting to a decree because in that case the Court has to consider, in view of the definition of the word decree whether there has been an adjudication determining the rights of the parties. An order merely rejecting a plaint will thus not prima facie fall within the definition of decree . But sub-cl. (j) of O. 43, R. 1, merely refers to an order refusing to set aside a sale". The learned Judge thinks that such an order of refusal prima facie implies that the petition had been admitted. As I have already pointed out, this question could never have arisen under the scheme of the Code as it formerly stood. I cannot therefore call in aid any, argument founded upon the probable intention of the Legislature. I have only to see whether the etymological meaning of the words found in the sub-clause will or will not apply to the case. I cannot therefore call in aid any, argument founded upon the probable intention of the Legislature. I have only to see whether the etymological meaning of the words found in the sub-clause will or will not apply to the case. If a person applies to have a sale set aside I do not see how a rejection of his petition is any the less a refusal to set aside the sale because the Court passed that order even before admitting the petition. After all, on an appeal against such an order, the appellate Court can only consider the reasonableness or otherwise of the order refusing to admit the petition; and i prefer not to deprive the petitioner of the right to seek the opinion of the appellate Court in the matter, unless it is possible to hold that the language of o. 43, R. 1 (j) is clearly incapable of being construed as comprehending the order of rejection. " ( 4 ) THE Division Bench of this Court following the said view in Sheikh Mastan v. Gubba Atchayya and others on this aspect held as hereunder : "the pertinent question for decision is whether an order dismissing a petition under O. XXI R. 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 o. XLIII, R. 1 (j), C. P. C. which provides: "an appeal shall lie from (j) an order under R. 72 or R. 92 of o. 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 Civil procedure Code 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 OXLIII, R. 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. 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 Code of Civil Procedure has recognized 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 provision for filing appeals against the rejection of a plaint as also against the dismissal of a suit. As already remarked, the Civil procedure Code 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 o. XLIII, R. 1 (j) C. P. C. We are reinforced in our opinion by the judgment of Varadachariar, J. in Marudamuthu mudaliar v. Venkatarama Iyer, 1939-2 mad. L. J. 132 = ( AIR 1939 Mad. 482 ). 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 ). " ( 5 ) IN Kedar Nath v. M/s. Purushottam das Banarsi Das it was held that: "appealable orders are detailed in o. XLIII, R. 1, C. P. C. Cl. (j) thereof refers to an order under R. 72 or R. 92 of o. XXI setting aside or refusing to set aside a sale. In case the words "setting aside or refusing to set aside a sale" were not incorporated in this clause it could be said that the impugned order, namely, mere dismissal of the application under O. XXI R. 90, was not appealable though an appeal would lie against the order confirming the sale. Similarly, if Cl. In case the words "setting aside or refusing to set aside a sale" were not incorporated in this clause it could be said that the impugned order, namely, mere dismissal of the application under O. XXI R. 90, was not appealable though an appeal would lie against the order confirming the sale. Similarly, if Cl. (j) had been worded differently to give a right of appeal against the order setting aside the sale or confirming it, no two opinions were possible. It shall, however, be found that the words used in Cl. (j) are slightly different to the words used in the order contemplated by O. XXI R. 92 (1), C. P. C. This sub-rule provides that : "where no application is made under R. 89, R. 90 or R. 91 or where such an application is made and disallowed, the Court shall make an order confirming the sale and thereupon the sale shall become absolute. " the decree-holder, or any person entitled to share in a rateable distribution of assets, or whose interests are affected by the sale, can apply under O. XXI, R. 90 (1), C. P. C. to have the sale set aside. The presentation and maintainability of such an application are determined by this rule. However, O. XXI, R. 92 (1) provides that where such an application (objection) is disallowed, the Court shall make an order confirming the sale and thereupon the sale shall become absolute. Rule 92 (1) thus contemplates an order confirming the sale and once such an order is passed the sale becomes absolute. If r. 92 is strictly construed, it shall be deemed to contemplate an order confirming the sale, and had the words setting aside or refusing to set aside a sale were not used in Cl. (j) of O. XLlll, r. 1, C. P. C. the appeal would lie against the order confirming the sale and not an earlier order disallowing the application under O. XXI, R. 90, C. P. C. When the legislature considered it necessary to give further particulars of the appelable order covered by Cl. (j) all the words used must be given their proper meaning, and it shall have to be held that the order contemplated by cl. (j) all the words used must be given their proper meaning, and it shall have to be held that the order contemplated by cl. (j) is one setting aside a sale as contemplated by sub-r. (2) of R. 92 of o. XXI or an order refusing to set aside a sale as a consequence of which the sale is confirmed and the sale becomes absolute under sub-r. (1 ). By implication this order shall be deemed to be under sub-r. (1) of R. 92 of O. XXI, C. P. C. I am thus of opinion that the impugned order dismissing the application under O. XXI, rule 90 C. P. C. refusing to set aside the sale was appealable under the above clause. The above question, namely the nature of the order which is appealable, does not appear to have been raised before the Allahabad High Court, as from the reported decisions it is evident that there are reported decisions in which both F. A. F. Os. and Civil Revisions have been entertained and in none it was urged that the order was not appealable or was appealable. However, the Madras and Andhra High courts have expressed the opinion that the order dismissing the application under O. XXI, R. 90, C. P. C. amounts to refusal to set aside a sale, and as such is appealable under Cl. (i) of O. XLlll, r. 1, C. P. C. " ( 6 ) LIKEWISE, in Mrs. Anjalina D souza v. The Laxmi Vilas Bank Ltd. it was held as hereunder: "a Division Bench of Calcutta High court in Ansarali v. Bhim Shankar dutta Tewari (AIR 1929 Cal. 407 (2)) considering the question, whether when no formal order has been recorded confirming the sale and the application under Order XXI, Rule 90, c. P. C. has been dismissed for default for non-appearance of both the parties to the proceeding, the order of dismissal passed under those circumstances is open to appeal has held as follows:- "in the present Code O. 43, R. 1 (j) speaks of an order under R. 72 (with which we are not concerned) or r. 92,o. 21, setting aside or refusing to set aside a sale. It appears therefore that the words "for confirming" which were to be found in S. 588, CI. 16 have been dropped out. It appears therefore that the words "for confirming" which were to be found in S. 588, CI. 16 have been dropped out. The obvious intention of the legislature was not to treat an order confirming a sale as one distinct in its essence from an order disallowing an application under order 21 R. 90. This intention appears to be further clear from the fact that O. 21, R. 92, says that where no application is made under rule 89, R. 90 or R. 91 or where such an application is made and disallowed the Court shall make an order confirming the sale and thereupon the sale shall become absolute. It is the disallowing of the application made under O. 21, R. 90 which corresponds to the order refusing to set aside a sale within the meaning of O. 41, R. 1, Cl. (j ). The fact that a distinct order has not been recorded confirming the sale does not alter the character of the order disallowing an application under O. 21, R. 90 and it is this last mentioned order that is appealable by reason of the provisions of O. 43, r. 1,ci. (j)". Nagpur Judicial Commissioners Court in balakrishna v. S. M. Chitnavis, (AIR 1932 nagpur 14) considering the correctness of the Order of the Appellate Court that appeal would not lie under Order XVIII, Rule 1 (j), c. P. C. from an order setting aside the sale, for default of the decree-holder has held as follows: "- I do not agree with the learned district Judge that O. 43, R. 1 (j) is not applicable. An application under O. 21, r. 90, had been made and the provisions of O. 21, R. 92, make it necessary that this application should be allowed or disallowed. It is quite clear that the executing Court would not have passed the order which it did pass had there been no application to set aside the sale. The order then must be considered to be an order setting aside the sale passed under the provisions of O. 21, R. 92, and was subject to appeals. It is quite clear that the executing Court would not have passed the order which it did pass had there been no application to set aside the sale. The order then must be considered to be an order setting aside the sale passed under the provisions of O. 21, R. 92, and was subject to appeals. " the Madras High in V. A. Narayana raja v. O. R. M. M. S. V. M. Meyappa chittiar, AIR 1975 Madras 36 considering the question of maintainability of the appeal against an order rejecting an application filed under Rule 105 (1) of Order21, C. P. C, for restoration of the application under order XXI, R. 90, C. P. C. has held as follows (at p. 39 of AIR): "a reading of this provision clearly shows that what is required for an appeal being preferred against a rejection of an application under sub-rule (1) of Rule 105 of Order 21. Civil p. C. is that the main application referred to in sub-rule (1) of Rule 104 of order 21, Civil P. C. is an appealable order. Undoubtedly an order of dismissal of an application under order 21, Rule 90, Civil P. C. is an appealable one order under Order 43, rule 1 (j ). Therefore, the appellant is certainly entitled to file an appeal as against the dismissal of E. A. 716 of 1969, which was filed under Order 21, rule 105, Civil P. C. Nowhere it is stated in Order 43, Rule 1 (jj) that where an application under Rule 105 had been dismissed for default, it was not open to the aggrieved party to file an appeal. In such circumstances, the second objection raised by the learned counsel for the respondents is also clearly untenable. " in view of the aforesaid discussion, it is clear that the order rejecting I. A. No. II filed by the petitioner under Rule 90 of order XXI, C. P. C. must be considered to be an order made under Rule 92 of order XXI, C. P. C. from which an appeal shall lie under Order XLIII rule 1 (j), C. P. C. The revision petition is therefore not maintainable. " ( 7 ) IN the light of the settled legal position, there cannot be any doubt or controversy that as against this order, an appeal alone is maintainable and hence the present revision petition is not maintainable in the light of the same. Let the office return the papers, inclusive of the certified copies to the petitioner to approach the appropriate forum in this regard. ( 8 ) THE civil revision petition is, accordingly, disposed of. No order as to costs.