SHIV PRASAD versus DURGA PRASAD & ANR.

SHIV PRASAD

DURGA PRASAD & ANR. February 12, 1975

[P. N. BHAGwAn, A. C. GuPn AND N. L. UNTWAU.A, JJ.J

Code of Civil Procedure, 1908~0. 21, rr. 89(2) and 90-Scope of.

Ri:le 89(2) of 0. 2.J ~.P.C. states that where person applies under r. 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 appli~ation under the Rule. The. appellant in the execution of his decree, pur•:hased certain prope!'ties of the Judgment debtor. Reopondent no. 1 who had purchased the properties earlier thereupon filed an application on December 12, 1967 under 0. 21 r. 90 for ,etting aside the sale. Later, he filed an application under 0. 21 r. 89 stating that he "withdraws the application under O. 21. r. 90 and docs not want to press the same". The Court, however, did not record an order of withdrawal of the.respondent no. l's application but posted it for directions regarding service of notice etc. and thereafter respondent no. 1 took steps for service of notice on the appellant and respondent no. 2. Eventually on March 9, 1968 respondent no. l made an appltcation that he did not wa!1t to prosecute his application filed U11der 0. 21 r. 90. The Court accordingly dismissed it.

The Execution Court thereafter allowed application under O. 21 r. 89 and set aside the sale. The appellant's appeal against this order was 'dismissed by the High Court.

In appeal to this Ccurt it was contended that respondent no. 1 was not entitled to make an application l)nder 0. 21 r. 89 unless he effectively withdrew his appli-cation under 0. 21 r. 90 and an order of the Court to that effect was passed.

Dismissing the appeal,

HELD: l(a) 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 r. 89 unless he withdraws his application under r. 90, then, the word 'make' would become redundant. In order to bring about the true intention of the Legis-lature, effect must be given to both the words. [529C] ·

(b) If person has first applied under r. 90 to set aside the sale, then, unless, he withdraws his application, he is not entitled to make and prosecute an appli-cation under r. 89. The application even if made, will be deemed to have been made only on withdrawal of the previous application. If, however, p•;rson has filed an application under r. 89 first and thereafter another application under r. 90 he will not be allowed to prosecute the former unless he withdrew the latter. [529D]

(c) Every applicant has right to unconditionally withdraw his a:Pplication and his unilateral act in that behalf ii sufficient. No order of the Court is necessary permitting him to withdraw his application. The Court may make 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 an appli-<.ant intimates the Court that he withdraws the application. [530B-C]

In the instant case respondent no. 1 had withdrawn hi' application not only hy mentioning in his application under r. 89 that he was withdrawing his applica-tion under r. 90 but also by filing separate application ·to that effect. 'The steps taken by him did not nullify the withdrawal made by respondent no. l of his application under r. 90 and did not make the withdrawal merely on that account ineffective. It was only after respondent no. 1 had intimated that he was not pursuing his application under r. 90 that formal order recording its dismissal was made. This order .of the Court had the effect of merely recording the withdrawal of the application under r. 90. Even without that order, the withdrnwal was effective on that date. [530C·E]

C1v1L APPELLATE JuRJSDICT!ON : Civil Appeal No. 998 of 1971.

Appeals by Speci>al leave from the Judgment & Order dated the 20th January, 1971 of the Allahabad High Court in F.A.No. 443 of 1968.

Hardayal Hardy, Janardan Sharma a'ad Jitendra Sharma, for the 8 appellant.

Sultan Singh and R. P. Agarwala, for the respondents.

Th?. Judgment of the Court was delivered by

UNTWAL!A, J. In this appeal by special leave of this Court is in-volved the interpretation and true meaning of subrule (2) of Rule 89 of Order 21 of the Code of Civil Procedure, 1908-hereinafter called the Code. The decreeholder is the appellant. The first responde[1],1t is the purchaser of major portion of the property sold in execution of the appellant's decree against respondent no. 2. The appellant had filed suit in the 1year 1951 against the husband of respondent no. 2 for realiwtion of certain sums of money due on Promisory note. The suit was dismissed by the Trial Judge of Saharanpur. The appe-llant filed First Appeal No. 12211954 in the Allahabad High Court. Certain properties belonging to the husband of respondent no.2 were directed to be attached before judgment by the High Court. In spite of the attachment, he sold the properties in two lots. The first lot was sold for sum of Rs. 7,580/- on 30-7-1956 to 0'11e Smt. Subadhara Devi. The remaini1ag at1'ached properties were sold in the second lot to the first responder! on 30.11.57 for Rs. 70,0001. The original defendant died during the pendency of tr.e first appeal in the High Court. His widow was substituted. The first appeal was allowed and tk suit was decreed against the substituted defendant respondent on 25.3.1966. The appellant filed Executio[1]a No. 121-1967 in the Sahoaranpur Court for realization of Rs. 11,795/- the amount due under the decree, Rs. 3,528.1 Op. the costs in the suit and the appeal together with the costs of the execution. In the said execution, the attached properties were sold and purchased by the appellant on 29 .11.1957 for Rs. 16,000/- with the leave of the Execution Court. The first-respon-rle!lt filed on 12.12.1967 an application under Order 21 Rule 90 of the Code for setti'ag the s•ale aside. This application was registered as Miscellaneous Case No. 3/1967 in Execution Case No. 12/1967. The period of 30 days from the date of sale expired during holidays. Respondent no. 1 on the re-opening date i.e. on 1.l.1968 instituted Miscellaneous Case No. 1/1968 by an application made under Order 21 Rule 89 of the Code. The amount as was necessary to be deposited for the setting aside of the s•ale U'ader Rule 89 was deposited in the Execution Court by respondent No.1 In hi~ application under Order ?. 1 Rule 89 of the Code statement was made by respondent no. 1 "The applicant has also given an .application under Order 21 Rule 90 and the applicant withdraws the same." On the S'ame date, i.e. 0,1 1.1.1968 respondent no. 1 also filed separate application stating therein that he had filed an application under Order 21 Rule 90 of the Code for cancellation of the auction held on 29-11-1967 which was

pending and that he had filed 01,1 application under Order 21 Rule 89 of the Code also. The further statement was that the applicant "now withdraws the application under Order 21, Rule 90, and does not want to press the same." sum of Rs 2,0001- by w>ay of security had been deposited by respondent no.1 while making that application. The prayer in this petition was also for the retum of the said sum of money.

It appears, however, that the Court did not record an orde:r of withdrawal in Miscellaneous Case No. 3/1967. In the usual c:ourse that case was put up on 6.1.1968 when respondent no. 1 and his counsel were present. direction was given to do Pairevi for fresh s1~rvice of notice on the opposite party, namely, the decree holder and the Judgment debtor. Steps were taken; but on 10.2.1968 it was found that service of notice on the Judgment debtor (opposite oarty !!lo.2) was not sufficient. On that date further steps were taken by respon· dent no.1 for service of notice on the opposite parties. Eventu'ally on 9.3.1968 the Advocate for respondent no.1 made an endors1~mein.t on the !Jack of the application filed under Order 21 Rule 90 of the Code : "Sir, In view of application dated 1.1.68 in our proceeding No.l of 1968 the applicant does not want to prosecute it." It was only then that Miscellaiaeous Case No. 311957 was dismissed by Execution Court on 9.3.1968. Miscellaneous Oase No. 111"68 pro-ceeded to disposal. In substance the only objection taken by the appellant to resist the said application was plea of its non-maintain-ability in vi~w of the provision of law contained in sub-rule (2) of Rule 89. · The Execution Court allowed the application of respondent nq._J under. Order 21 Rule 89 of the Code and set aside the sale. The appellant's appeal against the said order was dismissed by learned single Judge of the Allahabad High Court. On grant of specral leave by this Court the present appeal was presented.

At the outset we may reject >1ew plea taken by the appellant in this Court that the amount deposited by respondent no.1 was not suffi-cient, as pondage fee in accord>ance 'with Rules 365 and 371 framed by the Allahabad High Court was not deposited. We did not examine the correctness of this poi'at as it involved investigation of new facts which for the first time could not be permitted in this Court.

The only question for determination in this appeal is whether the application of respondent no.I under Order 21 Rule 89 of the Code was not mai'atainable and liable to be dismissed as such, and whether it has wrongly been allowed by the Courts below.

Mr. Hardayal Hardy, leal'11ed counsel for the appellant, strenously contended that respondent no.1 was not entitled to make an applica-tion under Order 21 Rule 89 .of the Code unless he effectively withdraw his application under Order 21 Rule 90 and an order of the Court to that effect was passed. Counsel further submitted that instead of asking the Court to mah an order permitting the withdrawal of his application under Rule 90, on two dates he took steps to prosecute that applica-tion. Ultimately the case was not proceeded with on 9-3-1968. In the eye of law, therefore, the application under Rule 89 should be

deemed to have been filed only on 9-3-1968 on which date it was. hopelessly barred by limitation ..

On the correct interpretation of sub-rule (2) o.f Rule 89 and on determination of its true scope it will be noticed that on the fai:ts aud in the circumstances of this case respondent no. l's application under Rule 89 has rightly: been allowed.

Order 21 Rule 89(2) reads as follows :

"Where person applies under Rule 90 · to set aside the sale of his immoveable property, he shall not, unless he with-draws his application, be eatitled to make or prosecute an application under this Rule."

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, affect must be given to both the words. If person has first applied under Rule 90 ta 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, perscn 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. · \ / '

Section 310A was added in the Code of 1882 by Act 5.of 1894. This section corresponds to Order 21 Rule 89 of the Code of 1908. The proviso to section 310A which corresponds to sub-rule (2) merely used the words "he shall not be entitled to make an application under this section". In the case of Rajendra Nath Haldar and others v. Nil~ ratan Mitter and others,(l) aa application under ·section · 310A 0f the Code of 1882 was first made and on the followin_g day appli-cants presented an application under section 311 (corresponding to Order 21 Rule 90). In view of the proviso the application under sec-tion 3 lOA failed. The argument put forward on behalf of the appli-cants was that if an application under section 311 was filed after the filing of the application under section 310A the proviso did not apply. It was rejected by the Bench consistin* of Petheram, q and Rampini, J. thus : "We consider that the words 'he shall not be entitled to make· an application under this'·section" in the proviso cannot mean merely "he shall not be entitled to present an application" _under the section,. but the word "make" here must mean "carry on" or "prosecute.". The· Legislature, it appears, to make the position of law certain, added the words "or prosecute" after the word "make" in sub-rule (2) of Rule 89 of Order 21 of the Code.

In -our judgment, an application under Rule 89 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

(l) I. L. R. 23, Calcutta, 958.

.cannot be allowed to be made or be deemed to have been made unless the prior application filed under Rule 90 is withdrawn.

Even on the interpretation of Rule 89 (2) which we have put W•e tll'e not prepared to accept the contention put forward on behalf ol' 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 tb the Court that he is withdrawing his applica-tion under Rule 90 which he had filed prior to the making of the appli-cation under Rule 89. Thereupon he becomes entitled to make the latter applicati'On. Every applicant has. right to unconditionally withdraw his application and his unilateral act in that behalf is suffi-cient. No order of the Court is necessary permitting him to withdraw the application. The Court may make 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. Res-pondent no. 1 has clearly done so here not only by mentioning in his application under Rule 89 that he was withdrawing his application . under Rule 90 but also by filing separate application to that effect, in which not ~mly the statement as to the withdrawal of the applica-tion under Rule 90 was made but prayer for the refund of Rs 2,000 was also made. The steps taken on behalf bf the respondent No. 1 in Miscellaneous Case No. 3/1967 even after the ·filing of Miscellaneous Case No. 1/1968 were clearly superfluous and of no effect. The steps taken did n·ot nullify the withdrawal made by res-pondent no. l of his application under Rule 90 and did not make the withdrawal merely on that account ineffective. Even if any ambiguity was created by the taking of such steps, later on 9-3-1968 in clearest language it was intimated on behalf of respondent no. 1 that he was not pursuing his application under Rule 90. It was only then that the Court made f'Ormal order recording its dismissal. In our judgment on the facts and in the circumstances of this case, the urder ol' the Court made on 9-3-1968 had the effect of merely recording the with-drawal of the application unde:r Rule 90 which was already effectively made on 1-1-1968. Even without that order, the withdrawal was effec-tive on that day.

We, therefore, hold that the applicati'On filed by respondent No. 1 under Order 21 Rule 89 of the Code has rightly been allowed. The appellant pursued his remedy even to this CXlurt on mere techni-cality to grab the properties purchased by respondent no. 1 for sum ofl Rs. 70,000/- which the appellant had purchased along with other portion of the property for sum of Rs. 16,000/- only. The appeal is accordingly dismissed with costs in favour of respondent no. 1.