SHIV PRASAD Vs. DURGA PRASAD

JUDGEMENT

(1.) In this appeal by special leave of this Court is involved the interpretation and true meaning of sub-rule (2) of Rule 89 of Order 21 of the Code of Civil Procedure, 1908- hereinafter called the Code. The decree-holder is the appellant. The first respondent 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 year 1951 against the husband of respondent no. 2 for realization of certain sums of money due on a Promissory Note. The suit was dismissed by the Trial Judge of Saharanpur. The appellant filed First Appeal No. 122/1954 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. 7,500/- on 30-7-1956 to one Smt. Subadhara Devi. The remaining attached properties were sold in the second lot to the first respondent on 30-11-57 for Rs. 70,000/-. The original defendant died during the pendency of the first appeal in the High Court. His widow was substituted. The first appeal was allowed and the suit was decreed against the substituted defendant-respondent on 25-3-1966.

(2.) The appellant filed Execution No. 12/1967 in the Saharanpur Court for realization of Rs. 11,795/- the amount due under the decree, Rs. 3,528.10 p. 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 29-11-1967 for Rs. 16,000/with the leave of the Execution Court. The first-respondent filed on 12-12-1967 an application under Order 21 Rule 90 of the Code for setting the sale 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 1-1-1968 in 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 sale under Rule 89 was deposited in the Execution Court by respondent no. 1.In his application under Order 21 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 same date, i.e. on 1-1-1968 respondent no. 1 also filed a separate application stating therein that he had filed an application under O. 21 Rule 90 of the Code for cancellation of the auction held on 29-11-1967 which was pending and that he had filed an 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. 2,000/- by way of security had been deposited by respondent no. 1 while making that application. The prayer in this petition was also for the return of the said sum of money.

(3.) It appears, however, that the Court did not record an order of withdrawal in Miscellaneous Case No. 3/1967. In the usual course that case was put up on 6-1-1968 when respondent no. 1 and his counsel were present. A direction was given to do Pairavi for fresh service 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 party no. 2) was not sufficient. On that date further steps were taken by respondent no. 1 for service of notice on the opposite parties. Eventually on 9-3-1968 the Advocate for respondent no. 1 made an endorsement on the back of the application filed under Order 21 Rule 90 of the Code: "Sir, In view of application dated l-1-68 in our proceeding No. 1 of 1968 the applicant does not want to prosecute it." It was only then that Miscellaneous Case No. 3/1967 was dismissed by Execution Court on 9-3-1968. Miscellaneous Case No. 1/1968 proceeded to disposal. In substance the only objection taken by the appellent to resist the said application was a plea of its non-maintainability in view of the provision of law contained in sub-rule (2) of Rule 89.