Holding

Withdrawal of a prior Rule 90 application is complete upon the applicant’s unilateral notice to the court, making the Rule 89 application effective on the date of such withdrawal (here 25 September 1974) and therefore within the prescribed limitation period.

Summary

Parkash Kaur mortgaged her house to Sandhooran and the property was later sold at auction. She first filed an application under Order XXI Rule 90 to set aside the sale on 16 September 1974 and subsequently filed an application under Order XXI Rule 89 on 23 September 1974 seeking to withdraw the sale and recover the money. The High Court held that the Rule 89 application was time‑barred because the earlier Rule 90 application was not withdrawn until 23 November 1974. The Supreme Court examined the meaning of Rule 89(2) of Order XXI, holding that withdrawal of a Rule 90 application is a unilateral act that becomes effective as soon as the applicant notifies the court, without needing a court order. The deposit of the required amount on 25 September 1974 demonstrated such withdrawal, so the Rule 89 application was deemed made on that date and was within the limitation period. Consequently, the appeal was allowed, overturning the High Court’s decision.

Issues considered

The effect of sub‑clause (2) of Order XXI Rule 89 on the timing of a Rule 89 application when a prior Rule 90 application has been filed.
Whether withdrawal of a Rule 90 application requires a court order or is effective upon the applicant’s unilateral notice to the court.
Whether the Rule 89 application filed on 23 September 1974 should be deemed to have been made on that date or on the later date of 23 November 1974.

Legislation cited

Code of Civil Procedure, 1908s. Order XXI Rule 66, s. Order XXI Rule 89, s. Order XXI Rule 90

Subjects

mortgagesale of mortgaged propertyOrder XXI Rule 89Order XXI Rule 90withdrawal of applicationlimitation periodcivil procedureauctiondecree holder

Judgment

,..,

t
SMT. PARKASH KAUR A
v.
SMT. SANDHOORAN AND ANR.
'

MARCH 31, 1993

(J.S. VERMA, P.B. SAWANT AND N.M. KASLIWAL, JJ.] B

-
Code of Civil Procedure, 1908: Order XX! Rule 89, 9()-{)rder XX/ Rule
, 89(2)--Scope-Word 'withdraws' construed-Ulhether the application made
under Rule 89 of Order 21 time ba"e1J--Case law discussed.
c
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. D

Thereafter, on 16.9.1974, the appellant made an application, con·
strued 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. E
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 F
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. G

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 90
C.P.C. H
897
898 SUPREME COURT REPORTS (1993) 2 S.C.R.

A 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 ¥
B acted upon and in substance allowed.

The Additional District Judge dismissed the appeal.

The High Court also dismissed the revision filed by the appellant. -
C Henao 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.
D 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 Rule 89(2) of Order
E XXI C.P.C. was considered. [902·8] ·:>-
It was held :·

'The applicant merely has to convey to the Court that he is withdraw-
ing his application under Rule 90 which he had filed prior to the making of
F the application under Rule 89. Thereupon he becomes entitled to make the
-
· latter application. Every applicant has a righfto 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.withdraMJ
G but the withdrawal is not dependent on the order of the Court. The act of
withdrawal is complete as soon as the applicanUntimates Ille Court that he
withdraws the application". (903 C-D)

The Court held in the instant case that the withdrawal of the prior
application made under Order XXI Rule 90 C.P.C. is the unilateral act of
H the judgment debtor, for which no permission of the Court is necessary,
) PARKASH KAUR v. SANDHOORAN 899

the act of withdrawal is compete as soon as the applicant intimates the A
court that he withdraws the application 11nd no order of the Court is
necessary for permitting such a withdrawal. (903-F)

'y 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
B
• complete by the unilateral and unqualified act of withdrawal by the appel-
lant, 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
c
·~
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 situa-
tion, 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 D
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-BJ
-'(
Shiv Prasad v. Durga Prasad, (1975) 3 SCR 526, relied on.
E
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.
F
~
S.K. Bhattacharya for the Appellant.

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

The following Order of the Court was delivered:
G
~ The short question involved for decision in this appeal is, whether
the appellant has been rightly denied the benefit of Order XX! Ru!e 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 H
..,

900 SUPREME COURT REPORTS [1993] 2 S.C.R. ~
A to have been made only on 23.11.74, in view of a prior application under
Order XX! Rule 90 CPC being withdrawn only on 23.11.74; and on that
date an application under Order XX! 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. ~

B On 16.10.1970 the appellant mortgaged her house to respondent No.1 L

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 lhe property. On 30.8.1974 the pr iperty was sold
-
c by auction, wherein it was purchased by respondent No.2 Surcsh 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 XX! 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 irrgularity and fraud
in publishing and conducting the sale. Even though no provision of law was
D
indicated under which lhe application was made, yet that application was
construed as made under Order XX! Rule 90 CPC. Thereafter, on
23.9.1974, the appellant made an application under Order XX! 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
E 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 XX! 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
F
purchaser on 8.11.1974, the objection was raised that the application under ?-
Order Xx! Rule 89 CPC could not be prosecuted without withdrawing the
prior application made under Order XX! 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 nlade on
G 16.9.1974, construed as made under Order XX! 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 XX! Rule 89
CPC was liable to be dismissed, even though the same had apparently been
H acted upon, and in substance allowed, by directing payment of the amount
"/
PARKASH KAUR v. SANDHOORAN 901

due to the decree holder from the deposit made by the J.D./appellant, the A
only direction remaining to be made was for refund to the auction pur-
chaser of the amount deposited by him. The appeal preferred by the
judgment debtor/appellant to the Addi. 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
B
. leave under Article 136 of the Constitution .

- The contention of the learned counsel for the judgment debtor/ap-
pellant is, that the High Court committed an error in taking the view, that
the application made under Order XX! Rule 89 CPC, even though filed
on 23.9.1974 and the ieposit of the requisite amount being made on c
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 XX!
CPC was lifted latest on 25.9.197-t, when the deposit was made by the D
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
E
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 XX! Rule 90 CPC,
having been made by the judgment debtor/appellant on 23.11.1974, the F
->..; 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 XX!, to support the view taken by the High Court. G
~
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: H
902 SUPREME COURT REPORTS [1993] 2 S.C.R.

A "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 L

~ .f
prosecute an application under this Rule."

In a similar situation, the effect &f the bar contained in the above
B provision came up for consideration in Shiv Prasad v. Durga Prasad [1975]
3 S.C.R. 526. It was held therein as under:

11
The words used in the sub-rule are make or 9rosecute
11

If it were to be held that the applicant is not entitled
11
•
-
c 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
D application, he is not entitled to make and prosetute 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
E 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 validly
-
F 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 applica-
tion filed under Rule 90 is withdrawn."

G 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 XX! Rule 89(2) CPC_ can operate for the purpose of supporting the
view taken by the High Court that the application made under Order XX!
Ruic 89 must be deemed to have been made only on 23.11.1974, and not
H earlier. It may be mentioned, that in Shiv Prasad (supra) after indicating
PARKASH KAUR 1•. SANDHOORAN 903

the true meaning of Order XXI Rule 89(2) CPC, the court proceeded A
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 B
that effect is recorded by the Court. The applicant merely

- llas to co11vey to the Court that he is wilhdrawing his
application under Rule 90 which Ile had filed prior to the
making of tile application under Rule 89. T71ereupon he
becomes entitled to make the latter application. Every ap- c
plicant has a right to unconditionally withdraw his applica-
tio11 and his u11ilateral act i11 that behalf is sufficient. No
order of the Court is necessary pennitting him to withdraw
the application. T71e Court may make a formal order dis-
posing of the application as withdrawn but the withdrawal
is not dependent on the order of the Court. The act of D
withdrawal is conip/ete as soon as the applicant intilnateS
the Court that he withdraws the application.'

(emphasis supplied)
E
The above extract. from that decision clearly indicates, that·

- withdrawal of the prior application made under Order XXJ Rule 90 CPC
is the unilateral act of the judgment debtor, for which no permission of the
Court is necessary; the act of withdra\\'al is complete as soon as the
applicant intimates the court that he withdraws the application; and no
F
-"'; order of the Court is necessary for permitting such a withdrawal. Jn 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. G
-r·
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 oflhe application
dated 16.9.74, construed as an application made under Order XXJ Rule
90 CPC,,was complete by the unilateral and unqualified act of withdrawal H
904 SUPREME COURT REPORTS [1993) 2 S.C.R.

A by the appellant, latest on 25.9.1974 when after making the application
under Order XX! 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.

It was submitted by learned counsel for the respondent, that the
B application under Order XX! Rule 89 CPC made on 23.9.1974 does not
indicate an unqualified withdrawal because of the language used therein,

C
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 in-
1

D ference ttl 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
E 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 ac-
complished fact which had happened much earlier, and not a withdrawal
F
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.

G We are, therefore, unable to sustain the view taken by the High
Court, that the application under Order XX! 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
H by the appellant in accordance with the direction of the Court. This is more
y

PARKASH KAUR v. SANDHOORAN 905
r so, in view of the fact, that the Court itself acted on the application under A
Rule 89 by making the order on 19.10.1974 for payment of the amount due
to the decree holder out of thr 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
B
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 Octobe1, 1974, the only direction which remains c
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 D
. addition a sum of Rs. 2,000 has been deposited by the appellant as security.

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
-( a=etions thereto in the nature of interest, have to be refunded to the
appellant. We direct accordingly. We also direct that the amount of Rs. E
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 will 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 a=etions thereto, if any, F
...., 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.
.f-·