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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