Summary
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 OrderXXI 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. 90C.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.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 allowedHELD : 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, 899the 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.See the full content of this document
Extract
Smt. Parkash Kaur VS. Smt. Sandhooran And Anr.
PETITIONER: SMT. PARKASH KAUR Vs.RESPONDENT: SMT. SANDHOORAN AND ANR.DATE OF JUDGMENT31/03/1993BENCH: VERMA, JAGDISH SARAN (J)BENCH: VERMA, JAGDISH SARAN (J)SAWANT, P.B.KASLIWAL, N.M. (J)CITATION: 1993 SCR (2) 897 1993 SCC (3) 312JT 1993 (4) 458 1993 SCALE (2)451ACT: Code of Civil Procedure, 1908: Order XXI Rule 89, 90-OrderXXI Rule 89(2)-Scope-Word 'withdraws' construed-Whether the application made under Rule 89 of Order 21 time barred-Case law discussed.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.S.K. Bhattacharya for the Appellant.S.S. Rana and Ms. B. Rana for the Respondents...
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