# SHIV PRASAD v. DURGA PRASAD & ANR

- **Citation:** [1975] 3 S.C.R. 526
- **Court:** Supreme Court of India
- **Decided:** 1975-02-12
- **Bench:** P. N. BHAGwAn, A. C. GuPn, N. L. Untwau.A
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shiv-prasad-v-durga-prasad-anr-6435
- **Pages:** 5

## Headnote

Code of Civil Procedure, 1908~0. 21, rr. 89(2) and 90-Scope of.
. B
Ri:le 89(2) of 0. 2.J ~.P.C. states that where a 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
C
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
n
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 application 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·
E
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 Legislature, effect must be given to both the words.
[529C]
·
(b) If a 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 application under r. 89. The application even if made, will be deemed to have been
made only on withdrawal of the previous application. If, however, a p•;rson has
F
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 a 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 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 an appliG
<.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 application under r. 90 but also by filing a 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 a formal order recording its dismissal was
H
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]
A
SHIV PRASAD v, DURGA PRASAD (Untwalia, J.)
527
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
a

## Text

526
SHIV PRASAD
A
v.
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.
. B
Ri:le 89(2) of 0. 2.J ~.P.C. states that where a 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
C
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
n
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 application 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·
E
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 Legislature, effect must be given to both the words.
[529C]
·
(b) If a 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 application under r. 89. The application even if made, will be deemed to have been
made only on withdrawal of the previous application. If, however, a p•;rson has
F
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 a 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 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 an appliG
<.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 application under r. 90 but also by filing a 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 a formal order recording its dismissal was
H
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]
A
SHIV PRASAD v, DURGA PRASAD (Untwalia, J.)
527
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.
c
D
E
F
G
H
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 involved 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 responde1,1t is
the purchaser of a major portion of the property sold in execution of
the appellant's decree against respondent no. 2.
The appellant had
filed a suit in the 1year 1951 against the husband of respondent no. 2
for realiwtion of certain sums of money due on a Promisory note.
The suit was dismissed by the Trial Judge of Saharanpur.
The appellant 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 a sum of Rs. 7,580/- on 30-7-1956 to 0'11e Smt. Subadhara
Devi.
The remaini
1ag 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 Executio1a 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-responrle!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 a 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 a 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
528
SUPREME COURT REPORTS
[1975] 3 S.C.R.
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."
A 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. A 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 proceeded to disposal.
In substance the only objection taken by the
appellant to resist the said application was a plea of its non-maintainability 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 a 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 a >1ew plea taken by the appellant in
this Court that the amount deposited by respondent no.1 was not sufficient, 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 application 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 application.
Ultimately the case was not proceeded with on 9-3-1968. In
the eye of law, therefore, the application under Rule 89 should be
8
I•
I
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D
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F
G
H
SHIV PRASAD v. DURGA PRASAD (Untwalia, !.)
52!t
A
deemed to have been filed only on 9-3-1968 on which date it was.
hopelessly barred by limitation ..
B
c
D
F
G
H
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 a person applies under Rule 90 · to set aside the
sale of his immoveable property, he shall not, unless he withdraws 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 a 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, a 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 applicants presented an application under section 311 (corresponding to
Order 21 Rule 90). In view of the proviso the application under section 3 lOA failed. The argument put forward on behalf of the applicants 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.
530
SUPREME COURT REPORTS
[1975] 3 s.c.R.
.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 applicaA
tion under Rule 90 which he had filed prior to the making of the appliB
cation under Rule 89. Thereupon he becomes entitled to make the
latter applicati'On. 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
C
order of the Court. The act of withdrawal is complete as soon as the
applicant intimates the Court that he withdraws the application. Respondent 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 a separate application to that effect,
in which not ~mly the statement as to the withdrawal of the application under Rule 90 was made but a prayer for the refund of Rs 2,000
D
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 respondent 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
E
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 a 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 withdrawal of the application unde:r Rule 90 which was already effectively
made on 1-1-1968. Even without that order, the withdrawal was effecF
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 a mere technicality to grab the properties purchased by respondent no. 1 for a sum
ofl Rs. 70,000/- which the appellant had purchased along with other
G
portion of the property for a sum of Rs. 16,000/- only. The appeal
is accordingly dismissed with costs in favour of respondent no. 1.
P.B.R.
Appeal allowed.