Full Judgment Text
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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.
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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,
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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