SHIV PRASAD versus DURGA PRASAD & ANR.

Citation: [1975] 3 S.C.R. 526 · Decided: 12-02-1975 · Supreme Court of India · Bench: P.N. BHAGWATI · Disposal: Appeal(s) allowed

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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 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· 
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 Legis-
lature, 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 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, 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 appli-
G 
<.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 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 in-
volved the interpretation and true meaning of subrule (2) of Rule 89 of 
Order 21 of the Code of Civil Proc

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