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PETITIONER:

SMT. PARKASH KAUR

Vs.

RESPONDENT:

SMT. SANDHOORAN AND ANR.

DATE OF JUDGMENT31/03/1993

BENCH:

VERMA, JAGDISH SARAN (J)

BENCH:

VERMA, JAGDISH SARAN (J)

SAWANT, P.B.

KASLIWAL, N.M. (J)

CITATION:

1993 SCR (2) 897 1993 SCC (3) 312

JT 1993 (4) 458 1993 SCALE (2)451

ACT:

Code of Civil Procedure, 1908: Order XXI Rule 89, 90-Order

XXI Rule 89(2)-Scope-Word 'withdraws' construed-Whether the

application made under Rule 89 of Order 21 time barred-Case

law discussed.

HEADNOTE:

The Subordinate Judge, Amritsar directed sale of the proper-

ty/house which was mortgaged by the appellant to respondent

No.1 Smt. Sandhooran for a sum of Rs. 5,000. The property

was sold by auction wherein it was purchased by respondent

No.2. The appellant made an application in the Court

alleging that no notice under Order XXI Rule 66 has been

served on her.

Thereafter, on 16.9.1974, the appellant made an application,

construed to be made under Order XXI Rule 90 C.P.C., in the

Court for setting aside the sale on the ground of material

irregularity and fraud in publishing and conducting the

sale.

On 23.9.1974 the appellant made an application under Order

XXI Rule 89 C.P.C. within the prescribed period of

limitation.

The Court made an order directing the appellant to deposit

the requisite amount of money. The appellant deposited the

requisite amount of money on 25.9.1974.

Thereafter, the Court, acting on the application made under

Order XXI Rule 89 C.P.C., made an order on 19.10.1974

directing payment to the decree-holder of the decretal

amount together with five per cent of the sale proceeds.

On 8.11.1974 the auction purchaser raised an objection that

the application under Order XXI Rule 89 C.P.C. could not be

prosecuted without withdrawing the prior application made

under Order XXI Rule C.P.C.

898

Then, on 23.11.1974, the Court recorded an express statement

of the counsel for the appellant withdrawing the appellant's

prior application construed as made under Order XXI Rule. 90

C.P.C.

Sub Judge, Amritsar, on 1.4.1974, dismissed the application

made under Order XXI Rule 89 C.P.C. though the same had

apparently been acted upon and in substance allowed.

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The Additional District Judge dismissed the appeal.

The High Court also dismissed the revision flied by the

appellant

Hence this appeal by special leave by the judgment

debtor/appellant contending that the High Court committed an

error in taking the view that the application made under

Order XXI Rule 89 C.P.C. even though filed on 23.9.1974 and

the deposit of the requisite amount being made on 25.9.1974

within time, would be deemed to have been made much later

I.e. on 23.11.1974, beyond the prescribed period of

limitation.

Appeal allowed

HELD : The Court relied on Shiv Prasad v. Durga Prasad

[1975] 3 SCR 526 in which the effect of the bar contained in

Role 99(2) of Order XXI C.P.C. was considered. [902-B]

It was held :-

"The applicant merely has to convey to the Court that he is

withdrawing his application under Rule 90 which he had riled

prior to the making of the application under Rule 89.

Thereupon he becomes entitled to make the latter

application. Every applicant has a right to unconditionally

withdraw his application and his unilateral act in that

behalf is sufficient. No order of the Court is necessary

permitting him to withdraw the application. The Court may

make a formal order disposing of the application as

withdrawn but the withdrawal is not dependent on the order

of the Court. The act of withdrawal is complete as soon as

the applicant intimates the Court that he withdraws the

application". [903 C-D]

The Court held in the instant cast that the withdrawal of

the prior application made under Order XXI Rule 90 C.P.C. is

the unilateral act of the judgment debtor, for which no

permission of the Court is necessary,

899

the act of withdrawal is compete as soon as the applicant

intimates the court that he withdraws the application and no

order of the Court is, necessary for permitting such a

withdrawal. [903-F]

In the present case, the withdrawal of application dated

16.9.1974, construed as an application made under' Order XXI

Rule 90 C.P.C., was complete by the unilateral and

unqualified act of withdrawal by the appellant, latest on

25.9.1974 when after making the application under Order XXI

Rule 89 C.P.C. the deposit of the requisite amount of money

was made in Court pursuant to the Court's order dated

23.9.74, made on that, application. [903-H, 904-A]

Further, the Court itself acted on the application under

Rule 89 by making the order on 19.10.74 for payment of the

amount due to the decree holder out of the deposit made by

the Judgment debtor. In such a situation, the application

made by the appellant under Order XXI Rule 89 C.P.C. would

be deemed to have been made on 25.9.1974, when there was

effective withdrawal of the prior application under Rule 90

by making the' deposit. In accordance with the direction of

the Court given on 23.9.1974. Admittedly, on 25.9.1974 the

application under Order XXI Rule 89 C.P.C. was within time.

[905 A-B]

Shiv Prasad v. Durga Prasad, [1975] 3 SCR 526, relied on.

JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 819 of 1979.

From the Judgment and Order dated 6.10.1978 of the Punjab

and Haryana High Court in Civil Revision No. 206 of 1978.

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S.K. Bhattacharya for the Appellant.

S.S. Rana and Ms. B. Rana for the Respondents.

The following Order of the Court was delivered:

The short question involved for decision in this appeal is,

whether the appellant has been rightly denied the benefit of

Order XXI Rule 89 CPC. The High Court has taken the view,

that the application made by the J.D./appellant under Order

XXI 89 CPC, even though filed in the Court on 23.9.1974

within the prescribed period of limitation, would be deemed

900

to have been made only on 23.11.74, in view of a prior

application under Order XXI Rule 90 CPC being withdrawn only

on 23.11.74; and on that date an application under Order XXI

Rule 89 CPC was time barred. The correctness of the view

taken by the High Court, on the facts in the present case,

is assailed in this appeal.

On 16.10.1970 the appellant mortgaged her house to

respondent No.1 Smt. Sandhooran for a sum of Rs.5,000. On

4.1.1973 it was held that the mortgagee was entitled to

recover the amount of Rs.5,812.50 with interest, by sale of

the mortgaged property. On 27.7.74, the Sub-ordinate Judge,

Amritsar directed sale of the property. On 30.8.1974 the

property was sold by auction, wherein it was purchased by

respondent No.2 Suresh Kumar for a sum of Rs.76,000. On

30.8.1974 the appellant made an application in the court

alleging that no notice under Order XXI Rule 66 has been

served on her. Then, on 16.9.1974, the appellant made an

application in the Court for setting aside the sale, on the

ground of material irregularity and fraud in publishing and

conducting the sale. Even though no provision of law was

indicated under which the application was made, yet that

application was construed as made under Order XXI Rule 90

CPC. Thereafter, on 23.9.1974, the appellant made an

application under Order XXI Rule 89 CPC, within the

prescribed period of limitation. The deposit of the requi-

site amount of money was, however, not made on that day, and

the Court made an order directing the appellant to deposit

that amount. This deposit was made on 25.9.1974.

Thereafter, the Court, acting on the application made under

Order XXI Rule 89 CPC, made an order on 19.10.1974 directing

payment to the decree holder of the decretal amount of

Rs.5,846.50 together with Rs.3,800, which was five per cent

of the sale proceeds. It appears that, thereafter, in the

reply filed by the auction purchaser on 8.11.1974, the

objection was raised that the application under Order XXI

Rule 89 CPC could not be prosecuted without withdrawing the

prior application made under Order XXI Rule 90 CPC. It was

then, on 23.11.1974, that the Court recorded an express

statement of the counsel for the appellant withdrawing the

appellant's Prior application made on 16.9.1974, construed

as made under Order XXI Rule 90 CPC.

The Sub Judge, Amritsar thereafter made an order on 1.4.1974

taking the view that the appellant's application made under

Order XXI Rule 89 CPC was liable to be dismissed, even

though the same had apparently been acted upon, and in

substance allowed, by directing payment of the amount

901

due to the decree holder from the deposit made by the

J.D./appellant, the only direction remaining to be made was

for refund to the auction purchaser of the amount deposited

by him. The appeal preferred by the judgment

debtor/appellant to the Addl. District Judge was dismissed

on 9.12.1977, and a further revision by her to the High

Court was dismissed on 6.10.1978. In these circumstances

this appeal has been filed by special leave under Article

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136 of the Constitution.

The contention of the learned counsel for the judgment

debtor/appellant is, that the High Court committed an error

in taking the view, that the application made under Order

XXI Rule 89 CPC, even though filed on 23.9.1974 and the

deposit of the requisite amount being made on 25.9.1974

within time, would be deemed to have been made much later

i.e.. on 23.11.1974, beyond the prescribed period of

limitation. It is submitted by learned counsel for the

appellant, that on the facts of the present case, it is

clear that the bar contained in sub-clause 2 of Rule 89 of

Order XXI CPC was lifted latest on 25.9.1974, when the

deposit was made by the judgment debtor in pursuance to the

court's order dated 23.9.1974, which is evident from the

fact that the Court itself acted on that application and

made the order on 19.10.1974 for payment of the amount due

to the decree holder from the deposit made by the judgment

debtor. It was submitted, that in such a situation there is

no scope for taking the view, that the application can be

deemed to have been made much later on 25.11.1974, as held

by the High Court. In reply learned counsel for respondent

no. 2, auction purchaser contended, that there is no

infirmity in the High Court's view in the present case. The

learned counsel submitted that the express withdrawal of the

prior application made under Order XXI Rule 90 CPC, having

been made by the judgment debtor/appellant on 23.11.1974,

the application made under Order XXI Rule 89 CPC cannot be

deemed to have been made prior to 23.11.1974, on which date

the application was admittedly time barred. Strong reliance

has been placed by learned counsel for respondent No. 2 on

the bar contained in sub-clause 2 of Rule 89 of Order XXI,

to support the view taken by the High Court.

Having heard both sides we are satisfied that this appeal

has to be allowed.

Sub clause 2 of Rule 89 of Order 21 CPC is as under:

902

"Where a person applies under Rule 90 to set

aside the sale of his immovable property, he

shall not, unless he withdraws his

application, be entitled to make or prosecute

an application under this Rule."

In a similar situation, the effect of the bar contained in

the above provision came up for consideration in Shiv Prasad

v. Durga Prasad [1975] 3 S.C.R. 526. It was held therein as

under:

"The words used in the sub-rule are 'make or

prosecute. If it were to be held that the

applicant is not entitled merely to prosecute

his application under Rule 89 unless he

withdraws his application under Rule 90, then

the word " make" would become redundant. In

order to bring about the true intention of the

Legislature, effect must be given to both the

words. If a person has first applied under

Rule 90 to set aside the sale, then, unless he

withdraws his application, he is not entitled

to make and prosecute an application under

Rule 89. The application even if made will be

deemed to have been made only on withdrawal of

the previous application. If, however, a

person has filed an application under Rule 89

first and thereafter another application under

Rule 90, he will not be allowed to prosecute

the former unless he withdrew the latter.

In our judgment, an application under Rule 89

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validly made on the date of its presentation

cannot be allowed to be prosecuted until the

subsequent application filed under Rule 90 is

withdrawn. But it cannot be allowed to be

made or be deemed to have been made unless the

prior application filed under Rule 90 is

withdrawn."

The settled meaning of this provision is therefore no longer

res integra. The question is, whether in the present case

the bar contained in Order XXI Rule 89(2) CPC can operate

for the purpose of supporting the view taken by the High

Court that the application made under Order XXI Rule 89 must

be deemed to have been made only on 23.11.1974, and not

earlier. It may be mentioned, that in Shiv Prasad (supra)

after indicating

903

the true meaning of Order XXI Rule 89(2) CPC, the court

proceeded further to say, as under:

"Even on the interpretation of Rule 89(2)

which we have put we are not prepared to

accept the contention put forward on behalf of

the appellant that an application under Rule

90 does not stand withdrawn until an. order to

that effect is recorded by the Court. The

applicant merely has to convey to the Court

that he is withdrawing his application under

Rule 90 which he had filed prior to the making

of the application under Rule 89. Thereupon

he becomes entitled to make the latter

application. Every applicant has a right to

unconditionally withdraw his application and

his unilateral act in that behalf is

sufficient. No order of the Court is

necessary permitting him to withdraw the

application. The Court may make a formal

order disposing of the application as

withdrawn but the withdrawal is not dependent

on the order of the Court. The act of

withdrawal is complete as soon as the

applicant intimates the Court that he

withdraws the application."

(emphasis supplied)

The above extract from that decision clearly indicates, that

withdrawal of the prior application made under Order XXI

Rule 90 CPC is the unilateral act of the judgment debtor,

for which no permission of the Court is necessary; the act

of withdrawal is complete as soon as the applicant intimates

the court that he withdraws the application; and no order of

the Court is necessary for permitting such a withdrawal. In

that decision itself, the court proceeded to take the view,

on the facts therein, that the application under Rule 90

would be deemed to have been withdrawn much before the

formal order was made by the Court to that effect, since the

conduct of the applicant therein was sufficient to lead to

that inference.

In our opinion the position in the present case, on facts,

is similar to that in Shiv Prasad, and it must be held that

withdrawal of the application dated 16.9.74, construed as an

application made under Order XXI Rule 90 CPC, was complete

by the unilateral and unqualified act of withdrawal

904

by the appellant, latest on 25.9.1974 when after making the

application under Order XXI Rule 89 CPC the deposit of the

requisite amount of money was made in Court pursuant to the

Court's order dated 23.9.1974, made on that application.

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It was submitted by learned counsel for the respondent, that

the application under Order XXI Rule 89 CPC made on

23.9.1974 does not indicate an unqualified withdrawal

because of the language used therein, which indicates the

appellant's intention to pursue the remedy available to her

under Rule 90. In our opinion, the fact that after the

filling of that application the Court made an order

directing the appellant to deposit the requisite amount and

the appellant without any protest or reservation deposited

that amount on 25.9.1974, is sufficient to indicate that

whatever reservation, if any, the appellant may have had at

the time of making the application on 23.9.1974 was

abandoned when the deposit was made on 25.9.1974 in

obedience to the court's order. This is the only logical

inference to draw from the conduct of the appellant in

making the deposit on 25.9.1974. This view finds support

also from the fact, that the court itself so construed the

conduct of the appellant, inasmuch as it made an order

thereafter on 19.10.1974 for payment of the amount due to

the decree holder from that deposit. This order of payment

to the decree holder could not have been made, otherwise.

Apparently no grievance was made by any one against the

making of that order, and we must proceed on the basis that

it was properly made. In such a situation, the Court in,

thereafter, recording express withdrawal of the application

under Rule 90 by the counsel for the appellant on

23.11.1974, was merely recording an accomplished fact which

had happened much earlier, and not a withdrawal on that date

itself. This appears to have been done, in view of the

objection taken in the reply filed by the auction purchaser

on 8.11.1974, since no express order had been made earlier

by the Court recording the fact of withdrawal of the

application under Rule 90 by the judgment debtor.

We are, therefore, unable to sustain the view taken by the

High Court, that the application under Order XXI Rule 89 CPC

in the present case is deemed to have been made only on

23.11.1974, when it was time barred, and not earlier, even

though it was filed within time on 23.9.1974 and was

complete in all respects on 25.9.1974, when the deposit was

made by the appellant in accordance with the direction of

the Court. This is more

905

so, in view of the fact, that the Court itself acted on the

application under Rule 89 by making the order on 19.10.1974

for payment of the amount due to the decree holder out of

the deposit made by the judgment debtor. In such a

situation, in our view, the application made by the

appellant under Order XXI Rule 89 CPC would be deemed to

have been made on 25.9.1974, when there was effective

withdrawal of the prior application under Rule 90 by making

the deposit in accordance with the direction of the Court,

given on 23.9.1974. Admittedly, on 25.9.1974 the application

under Order XXI Rule 89 CPC was within time.

On the above view, the payment to the decree holder having

already been made as far back as October, 1974, the only

direction which remains to be given is for refund of the

sale price to the auction purchaser in view of the judgment

debtor's application under Rule 89 being allowed. By an

order dated 26.3.1979 modified by an order dated 29.10.1980,

the appellant was directed by this Court to deposit in all a

sum of Rs. 20,000 which was to be kept in fixed deposit in

any nationalised bank. It is stated that the order has been

complied with, and the deposit has been made, and in

addition a sum of Rs. 2,000 has been deposited by the

appellant as security..

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In the view we have taken in this matter, the entire deposit

so made by the appellant under the direction of this court,

together with the accretions thereto in the nature of

interest, have to be refunded to the appellant. We direct

accordingly. We also direct that the amount of Rs. 76,000,

deposited by the auction purchaser as the sale price in the

executing Court, together with the accretions thereto, in

the nature of interest, be paid to the auction purchaser.

In addition, the auction purchaser win also be paid a sum

equal to 5% of the sale price amounting to Rs. 3,800,

already in deposit in the executing Court, together with

accretions thereto, if any, by way of interest.

Consequently the appeal is allowed in the above manner. In

the circumstances of the case, no order as to costs.

S.K.

Appeal allowed.

906