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 Civil Procedure Code. The High court has taken the view, that the application made by the J. D. /appellant under Order 21 Rule 89 Civil Procedure Code, even though filed in the court on 23/09/1974 within the prescribed period of limitation, would be deemed to have been made only on 23/11/1974, in view of a prior application under Order 21 Rule 90 Civil Procedure Code being withdrawn only on 23/11/1974; and on that date an application under Order 21rule 89 Civil Procedure Code was time barred.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 16/10/1970 the appellant mortgaged her house to respondent 1 Smt Sandhooran for a sum of Rs. 5,000. 00. On 4/01/1973 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 27/07/1974, the Subordinate Judge, Amritsar directed sale of the property. On 30/08/1974 the property was sold by auction, wherein it was purchased by respondent 2 Suresh Kumar for a sum of Rs. 76,000. 00. On 30/08/1974 the appellant made an application in the court alleging that no notice under Order 21 Rule 66 has been served on her. Then, on 16/09/1974, 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 Civil Procedure Code. Thereafter, on 23/09/1974, the appellant made an application under Order 21 Rule 89 Civil Procedure Code, 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 25/09/1974. Thereafter, the court, acting on the application made' under Order 21 Rule 89 Civil Procedure Code, made an order on 19/10/1974 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 8/11/1974, the objection was raised that the application under Order 21 Rule 89 Civil Procedure Code could not be prosecuted without withdrawing the prior application made under Order 21 Rule 90 Civil Procedure Code. 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 made on 16/09/1974, construed as made under order 21 Rule 90 Civil Procedure Code.

(3.) The Sub-Judge, Amritsar thereafter made an order on 1/04/1974 taking the view that the appellant's application made under Order 21 Rule 89 Civil Procedure Code 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 Additional 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 leave under Article 136 of the Constitution.