Mrinalini Chowdhurani vs Benode Chandra Mitra on 9 March, 1910
Consequently, whichever of these contingencies may happen, the order of confirmation is made under Section 312 and is appealable under Clause 16 of Section 588. In so far, therefore, as the appeal is directed against the order of confirmation, it is perfectly competent. In so far, however, as the appeal is directed against the order refusing to set aside the ex parte order of dismissal of the application under Section 311, the appeal is incompetent. This is obvious from the decision of this Court in Sujauddin v. Reazuddin 27 C. 414, and Jung Bahadur v. Mahadeo Prasad 31 C. 207, and of the Allahabad High Court in Gahsiti Bibi v. Abdul Samad 29 A. 596 : A.W.N. (1907) 186. But the learned Vakil for the appellant has suggested that the appeal is competent under Clause 8 of Section 588. In our opinion, there is no foundation for this contention. Clause (8) only provides that an order rejecting an application under Section 103 (in cases open to appeal) for an order to set aside the dismissal of a suit is appealable. When, however, Section 103, read with Section 647, is applied to an application under Section 311. the ex parte order of dismissal is not a dismissal of a suit within the meaning of Clause (8) of Section 588, and consequently an appeal does not lie from an order refusing to set aside such ex parte order of dismissal. The preliminary objection, therefore, prevails in part, and, we proceed to hear the appeal in so far as it is directed against the order confirming the sale.