ORDER : 1. The present writ petition has been filed assailing the validity of the order dated 04.11.2022 passed by Additional District Judge No.1, Sri Ganganagar in Civil Misc. Case CIS No.95/2022, whereby the application of the petitioner preferred under Order XXI Rule 90 CPC was rejected. 2. Instant writ petition was presented before this Court on 14.11.2022. This Court vide ad interim order dated 21.11.2022 directed to maintain status quo as on that date. The said interim order was recalled by this Court on 20.05.2025. Thereafter, an application (4/2025) was preferred on behalf of the petitioners under Article 226 of the Constitution of India with the following prayer: “It is, therefore, most humbly and respectfully prayed that this application may kindly be allowed and the present writ petition may kindly be converted and treated as S.B. Civil Execution First Appeal under Order 43 Rule 1 CPC.” 3. Learned counsel for the petitioners-applicant fairly submits that the order dismissing the objection to the auctions proceedings is appealable order, however, due to inadvertence, the petitioner–Company instead of preferring an appeal, had preferred the present writ petition. To buttress his contention, learned counsel for the petitioner has relied upon the judgments of Hon’ble the Supreme Court in the case of Nawab Shaqafath Ali Khan & others vs. Nawab Imdad Jah Bahadur & others, 2009 Supreme (SC) 439 , judgment of Karnataka High Court in the case of Talari Thippeswamy vs. Doddappa , I.L.R. 1996 KAR 750 and judgment of Andhra Pradesh High Court at Hyderabad in the case of Konati Swamanna vs. Golla Venkataswamy , 2005 (1) A.P.L.J. 272 (HC). 4. Controverting the submissions raised in the said application (04/2025), learned counsel appearing for the respondents has filed a reply to the application, inter alia, contending that the petitioners, without assigning any plausible reason for the inordinate delay, have moved the present application seeking conversion of the writ petition into an Appeal after a lapse of more than 2½ years, and that too subsequent to the vacation of the status quo order. It is further urged that the petitioners, in their application, have prayed that “the writ petition may be “converted and treated as an S.B. Civil Execution First Appeal under Order XLIII Rule 1 of the Code of Civil Procedure, 1908” which is misconceived, defective, and legally untenable, and as such, the same is liable to be rejected. 5. It is further urged that the petitioners, in their application, have prayed that “the writ petition may be “converted and treated as an S.B. Civil Execution First Appeal under Order XLIII Rule 1 of the Code of Civil Procedure, 1908” which is misconceived, defective, and legally untenable, and as such, the same is liable to be rejected. 5. To the aforesaid contention of learned counsel for the respondents that the remedy lies by way of “Miscellaneous Appeal” not a “Civil Execution First Appeal” leaned counsel for the petitioner orally prays that the present writ petition may be converted into S.B. Civil Miscellaneous Appeal. 6. Heard learned counsel for the parties, perused the impugned order as well as the material available on record and have also gone through the judgments relied upon learned counsel for the petitioners. 7. Initially, at the time of filing of the reply to the instant writ petition, it was specifically averred by the respondents in Preliminary Objection “B” which reads as under: “Admittedly, the petitioner has preferred this writ petition against the rejection of an application filed under Order 21 Rule 90 of the Code of 1908, wherein the learned Executing Court refused to set aside the sale-deed confirmed in favour of the answering respondent. According to Order 43 Rule 1(j) of the Code of 1908, an appeal against such an order is clearly provided, which is a statutory and efficacious remedy through the filing of an appeal before the competent court of law.” 8. Now, the respondents have taken a U-turn by altering their earlier stand and have contended that against a decree only an appeal under Section 96 of the Code of Civil Procedure is maintainable. It is further submitted that in terms of Order XXI Rule 103, only those orders passed under Rules 98 or 100 acquire the force of a decree and are thus appealable, whereas the present matter arises from an order passed under Order XXI Rule 90 read with Rule 92 CPC, which does not attract the provisions of Section 96 or Order XXI Rule 103 CPC. 9. 9. In the case of Konati Swamanna (supra), the Andhra Pradesh High Court relying upon the judgment in the case of Sheikh Mastan vs. Guba Atchayya, and others , AIR 1959 AP 667 (V 46 C 195) held that an appeal is maintainable under Order XLIII Rule 1(j) of the Code of Civil Procedure against an order dismissing an application filed under Order XXI Rule 90 CPC, observing as under: “5. Now the question is whether an appeal is maintainable under Or. XLIII Rule 1(j) when the application filed by the petitioner before the executing Court under Order 21 Rule 90 CPC was dismissed. 6. This question is no longer res-integra in view of the judgment rendered by a Division Bench of this court in Sheikh Mastan vs. Guba Atchayya, and others , AIR 1959 AP 667 (V 46 C 195). The important excerpts thereof are extracted hereunder for ready reference. The pertinent question for decision is whether an order dismissing a petition under Order XXI, Rule 90, CPC 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 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 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, (Para 3) As already remarked, the CIVIL PROCEDURE CODE does not contain any provision giving a right of appeal against an order rejecting an application inlimini 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, KR. 1(j), C.P.C. We are re-inforced in our opinion by the judgment of Varadachariar J. in Marudamuthu Mudaliar vs. Venkatarama Iyar, 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). (Para 4) It follows that an appeal against such an order is competent. (Para 5)” 10. In the case of Talari Thippeswamy (supra), the Karnaka High Court categorically observed as under: “….The Order 21 Rule 92 provides as per sub-rule (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." Reading of sub-rule 1 of Rule 92 per se reveals that the application under Order 21 Rule 90 is to be disposed of and if even dismissed or disallowed by the Court, then the Court will make order making the sale absolute. The order passed under Rule 92 disposing of the application or objection under Order 21 Rule 90 and thereafter confirming the sale has been declared to be appealable order under the provisions of Order 43 Rule 1(j) read with Section 104 of C.P.C.” 11. In view of the aforesaid pronouncements of the Karnataka and Andhra Pradesh High Courts, and upon a plain reading of the provisions contained in Order XLIII Rule 1 of the Code of Civil Procedure, it is evident that the proper remedy against the impugned order lies only by the way of an appeal. 12. As regards the contention of the learned counsel for the respondents that the present application for conversion has been moved after more than two and a half years, it is well settled that the time spent in bona fide pursuit before the same Court stands protected. 12. As regards the contention of the learned counsel for the respondents that the present application for conversion has been moved after more than two and a half years, it is well settled that the time spent in bona fide pursuit before the same Court stands protected. In these circumstances, mere pendency of the writ petition for two and a half years cannot be a ground to decline conversion, particularly when no prejudice is shown to have been caused to the respondents and the petitioners have continuously and diligently pursued their remedy before this very Court. The petitioners had already invoked the jurisdiction of this Court within a reasonable time and the subsequent lapse of time occurred solely on account of the matter remaining pending before the same forum. 13. In view of the foregoing discussion, it is evident that the petitioners, having initially invoked the writ jurisdiction under Article 226 of the Constitution of India, now sought to avail the statutory appellate remedy provided under the Code of Civil Procedure. Since the law always leans in favour of adjudication on merits rather than on technicalities, the conversion of the present proceedings into an appeal deserves to be permitted in the interest of substantial justice. 14. Accordingly and in light of the discussion made hereinabove, the application as well as the oral prayer for conversion of the present writ petition into an “S.B. Civil Miscellaneous Appeal” is hereby allowed. 15. Consequently, the present writ petition stands disposed of for statistical purposes with a direction that it shall be treated as an “S.B. Civil Miscellaneous Appeal.” The office is directed to register the same accordingly. The respondents, however, shall be at liberty to raise all objections, as urged in the present proceedings, in the appeal in accordance with law. 16. All pending applications, if any, also stand disposed of.