KABIRUDDIN Vs. KRISHNA RAO

JUDGEMENT

(1.) THE first respondeat Krishna Rao attached certain immovable property belonging to the second respondent Datttatray in execution of a decree, and it was sold by auction to the appellant Kabiruddin for Rs. 1,600 on

(2.) ND May 1924. The purchase-money was paid within the time allowed by law. On the day after the sale the judgment-debtor filed an application praying that the sale should be set aside under Rule 90, Order 21, Civil P.C. on the ground of material irregularity in publishing it. With the details of the alleged irregularity we are not now concerned. 2. The Courts were closed for the summer vacation from 11th May to 15th June and on 16th June the judgment-debtor filed an application to have the sale set aside under Rule 89, Order 21. This was accompanied by a deposit of Rs. 800 for payment to the auction purchaser and a receipt signed by the decree-holder acknowledging full satisfaction of the decree. The deposit and the application must be considered, in respect of limitation, to have been made on 11th May, but it may be mentioned that the deposit of the Rs. 800 was actually made on 2nd June, which was a Monday and therefore counts as the thirtieth day from 2nd May, the date of the sale.

(3.) TAKEN by itself then the judgment-debtor's application under Rule 89, was well within time and had to be granted. But he had already made an application under Rule 90, and till that was withdrawn he was not "entitled to make or prosecute" an application under Rule 89. That withdrawal was not actually made till 25th July. It is urged that the withdrawal ought to relate back to the date of the making of the application under Rule 89, which should be regarded as itself a sort of automotic withdrawal. That would be impossible according to the plain words of Rule 89, but anyhow there was more here than the absence of an express withdrawal; there was an express refusal to withdrawal.