MT SARVI BEGAM Vs. LRAM CHANDER SARUP

JUDGEMENT

(1.) This is an appeal from an order refusing to set aside a sale on the ground of fraud. The learned Judge has dismissed the application on two grounds : (1) that in view of a previous application under Order 21, Rule 89, having been made and pressed, the present application was not maintainable; and (2) that the allegations contained in the application were not sufficient to bring the case within Section 18 of the Indian Limitation Act. The learned Subordinate Judge without allowing the appellant any opportunity to prove the allegations made by her in the application has dismissed the application after hearing arguments only.

(2.) In execution of a decree, as well as for some further amount of which the decree-holder claimed that he was entitled to a refund, the property in question was put up for sale and sold on the 2lst of January. 1924. No application under Order 21, Rule 90, was made by the judgment-debto within 30 days of this date; but, on the 19 of February 1924, she put in an application under Order 21, Rule 89, praying that the sale be set aside on payment of the decretal amount, the costs etc. It so happened that the amount deposited by her was short by a few rupees. The matter was argued, and on the 1 of March 1924, she tiled a supplementary application offering to make good the balance. This application was refused. While the application was still being argued another application under Order 21, Rule 90, was filed which was registered after the application under Order 21, Rule 89, had been dismissed.

(3.) The learned Subordinate Judge Was of opinion that inasmuch as the applicant did not withdraw her application under Order 21, Rule 89, but pressed it seriously, and as it was ultimately dismissed on the merits, it must be presumed that she had withdrawn her application under Order 21, Rule 90. This is based on the provision contained in Order 21, Rule 89, Sub-clause (2), under which it is provided that where a person applies under Rule 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 application under Rule 89. It seems to us that the Court ought to have called upon the applicant's counsel to make his election either to withdraw her application under Rule 90 or not. If he declined to do so the Court should not have allowed him to press his application under Order 21, Rule 89. But from the fact that he was not called upon to make his choice it would be too much to presume that he withdrew his application under Rule 90, particularly when the order sheet shows that the application was argued at length and the judgment was not pronounced on that date merely because it was too late. In our opinion the converse proposition that an application under Order 21, Rule 89, having been heard and disposed of, an application under Order 21, Rule 90, is not maintainable does not necessarily follow from Sub-clause (2) of Rule 89.