PARKASH KAUR Vs. SANDHOORAN

JUDGEMENT

(1.) THE short question involved for decision in this appeal is, whether the appellant has been rightly denied the benefit of Order 21 Rule 89 CPC. The High Court has taken the view, that the application made by the J.D./appellant under Order 21 Rule 89 CPC, even though filed in the Court on September 23, 1974 within the prescribed period of limitation, would be deemed to have been made only on November 23, 1974, in view of a prior application under Order 21 Rule 90 CPC being withdrawn only on November 23, 1974; and on that date an application under Order 21 Rule 89 CPC was time barred.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.

(2.) ON October 16, 1970 the appellant mortgaged her house to respondent 1, Smt Sandhooran for a sum of Rs. 5,000. On January 4, 1973 it was held that the mortgagee was entitled to recover the amount of Rs. 5812.50 with interest, by sale of the mortgaged property. On July 27, 1974, the Subordinate Judge Amritsar directed sale of the property. On August 30, 1974 the property was sold by auction, wherein it was purchased by respondent 2, Suresh Kumar for a sum of Rs. 76,000. On August 30, 1974 the appellant made an application in the Court alleging that no notice under Order 21 Rule 66 has been served on her. Then, on September 16, 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 21 Rule 90 CPC. Thereafter, on September 23, 1974, the appellant made an application under Order 21 Rule 89 CPC, within the prescribed period of limitation. The deposit of the requisite 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 September 25, 1974. Thereafter, the Court, acting on the application made under Order 21 Rule 89 CPC, made an order on October 19, 1974 directing payment to the decree holder of the decretal amount of Rs. 5846.50 together with Rs. 3800, which was five per cent of the sale proceeds. It appears, that, thereafter, in the reply filed by the auction purchaser on November 8, 1974, the objection was raised that the application under Order 21 Rule 89 CPC could not be prosecuted without withdrawing the prior application made under Order 21 Rule 90 CPC. It was then, on November 23, 1974, that the Court recorded an express statement of the counsel for the appellant withdrawing the appellant's prior application made on September 16, 1974, construed as made under Order 21 Rule 90 CPC. The Sub -Judge, Amritsar thereafter made an order on April 1, 1974tnking the view that the appellant's application made under Order 21 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 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 December 9, 1977, and a further revision by her to the High Court was dismissed on October 6, 1978. In these circumstances this appeal has been filed by special leave under Article 136 of the Constitution.

(3.) 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) 1 SCC 405. 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 validly made on the date of its presentation cannot be allowed to be prosecuted until the subsequent application filed under Rule 90 is with drawn. 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."