SMT. PARKASH KAUR versus SMT. SANDHOORAN AND ANR.

Citation: [1993] 2 S.C.R. 897 · Decided: 31-03-1993 · Supreme Court of India · Bench: J.S. VERMA, P.B. SAWANT, N.M. KASLIWAL · Disposal: Appeal(s) allowed

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Judgment (excerpt)

,.., 
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 
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, 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 D 
has been served on her. 
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. 
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The Court made an order directing the appellant to deposit the 
requisite amount of money. The appellant deposited the requisite amount F 
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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 G 
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 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, 
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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 
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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 
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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

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