Rajasthan High Court - Jodhpur
Vd Agrotech Limited vs Bhagwandas Bansal (2025:Rj-Jd:49624) on 18 November, 2025
[2025:RJ-JD:49624]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 17268/2022
1. VD Agrotech Limited, Land No. E-184-185, Udyog Vihar,
Sri Ganganagar Through Its Director Rajendra Kumar S/o
Vasudev Mittal, Aged About 59 Years, Resident Of A-504,
Prajapati Cascade, Sector 1, New Panvel, Navi Mumbai,
41026.
2. VD Agrotech Limited, Land No. E-184-185, Udyog Vihar,
Sri Gangangar, Through Its Share Holder Sh. Neeraj Siyag
S/o Prem Sukh, Aged About 35 Years, Resident Of
Farsewala, Tehsil Padampur, District Sri Ganganagar.
----Petitioners
Versus
1. Bhagwandas Bansal S/o Ram Pratap, Resident Of
Kestalvage, 25.2Th Post Code 2100, Kopenhegan,
Denmark Through His Power Of Attorney Holder Sh.
Narendra Singh S/o Rajendra Singh, Resident Of Purani
Aabadi, Sri Ganganagar.
2. Firm Pawan And Sons Situated At E-184-185, Riico
Industrial Area Through Its Owner Sh. Pawan Kumar
Mittal S/o Vasudev Mittal, Resident Of House No. 38, Tilak
Nagar, Sri Ganganagar.
3. Lrs Of Pawan Kumar Mittal, S/o Sh. Vasudev Mittal.
3/1. Manisha Mittal D/o Late Sh. Pawan Kumar, Resident Of
House No. 38, Tilak Nagar, Sri Ganganagar At Present
Residence Of 4/2, Pritampura, Delhi.
3/2. Pankaj Kumar Mittal, Resident Of House No. 38, Tilak
Nagar, Sri Ganganagar At Present Residence Of 4/2,
Pritampura, Delhi.
3/3. Aakansha Mittal D/o Late Sh. Pawan Kumar, Resident Of
House No. 38, Tilak Nagar, Sri Ganganagar At Present
Residence Of 4/2, Pritampura, Delhi.
3/4. Kanika Mittal D/o Late Sh. Pawan Kumar, Resident Of
House No. 38, Tilak Nagar, Sri Ganganagar At Present
Residence Of 4/2, Pritampura, Delhi.
4. Rajneesh Kumar Goyal, Director Sh. Balaji Trygal Pvt.
Ltd., Situated At 2/12, Shanker Colony, Kesarsinghpur, Sri
Ganganagar.
----Respondents
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For Petitioner(s) : Mr. Rajesh Joshi, Sr. Advocate
assisted by Mr. Devesh A. Purohit
For Respondent(s) : Mr. Manish Shishodia, Sr. Advocate
assisted by Mr. Harshvardhan Singh
Mr. Rajesh Parihar
Mr. Mudit Nagpal
HON'BLE MR. JUSTICE CHANDRA SHEKHAR SHARMA
Order
ARGUMENTS CONCLUDED ON : 06/11/2025
ORDER RESERVED ON : 06/11/2025
FULL ORDER PRONOUNCED ON : 18/11/2025
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 XX1 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."
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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
reported in 2009 Supreme(SC) 439, judgment of Karnataka
High Court in the case of Talari Thippeswamy vs Doddappa
reported in I.L.R. 1996 KAR 750 and judgment of Andhra
Pradesh High Court at Hyderabad in the case of Konati
Swamanna vs. Golla Venkataswamy reported in 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.
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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
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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. 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 AIR1959 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 AIR1959
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
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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 lyar, 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:
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"....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. 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
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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.
(CHANDRA SHEKHAR SHARMA),J
135-Anil/-
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