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Parkash Kaur Vs. Sandhooran and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 206 of 1978
Judge
Reported inAIR1979P& H36
ActsCode of Civil Procedure (CPC), 1908 - Sections 47, 60 and 151 - Order 21, Rules 66 and 89 - Order 41, Rule 6
AppellantParkash Kaur
RespondentSandhooran and anr.
Cases ReferredMt. Sarvi Beqam v. L. Ram Chandar Sarup
Excerpt:
.....a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. .....by suresh kumar respondent.3. on the same day, that is, aug. 30, 1974, smt. sandhooran, judgment-debtor filed an application under ss. 47, 60 and 151 read with o. 41, r. 6 of the civil p.c., stating that no notice under o. 21, r. 66 of the code had been served on her and consequently the property could not be sold. she prayed that the sale be stayed. in spite of the application, the property was sold. thereafter on september 16, 1974, another application was filed by the judgment-debtor alleging that the sale of the property was null and void, that there the property was null and void, that there had been material irregularities and fraud in publishing and conducting the sale and that the petitioner's interest had been seriously affected on account of irregularities and fraud. she.....
Judgment:
ORDER

1. This revision petition has been filed by the judgment-debtor against the judgment of the Additional District Judge, Amritsar, dated December 9, 1977.

2. Briefly the facts are that on October 16, 1970, Smt. Parkash Kaur mortgage a house situated in Katra Sher Singh, Amritsar, to Smt. Sandhooran, for an amount of Rs. 5,000/- vide a registered mortgaged deed. There was an arbitration clause in the deed wherein it was provided that any dispute arising between the parties would be referred to arbitration. A dispute arose between the parties regarding the payment of the amount and consequently the matter was referred to the arbitration of Mr. Kartar Singh Bagga, who held that Smt. Sandhooran was entitled to recover the amount of Rs. 5,812.50, with interest thereon by sale for the mortgaged property. The award was filed in the Court and it was made a rule of the Court. Smt. Sandhooran filed an execution application against the judgment-debtor in the Court of Subordinate Judge First Class, Amritsar, who on July 27, 1974, ordered sale of the property. In pursuance of that order the property was sold on August 30, 1974 and was purchased by Suresh Kumar respondent.

3. On the same day, that is, Aug. 30, 1974, Smt. Sandhooran, judgment-debtor filed an application under Ss. 47, 60 and 151 read with O. 41, R. 6 of the Civil P.C., stating that no notice under O. 21, R. 66 of the Code had been served on her and consequently the property could not be sold. She prayed that the sale be stayed. In spite of the application, the property was sold. Thereafter on September 16, 1974, another application was filed by the judgment-debtor alleging that the sale of the property was null and void, that there the property was null and void, that there had been material irregularities and fraud in publishing and conducting the sale and that the petitioner's interest had been seriously affected on account of irregularities and fraud. She prayed that the sale of the house be set aside. While the above application was pending, she moved another application on September 23, 1974, under O. 21, R. 89 of the Code stating that she was ready to deposit the decretal amount of Rs. 5,846.50 and Rs. 3,800/-, 5% of the sale proceeds, and she may be allowed to do so. She further prayed that the sale for the property be set aside. On January 25, 1975, she moved yet another application that the decree-holder had withdrawn the amount deposited by her and, therefore, the sale was liable to be set aside. On November 23, 1974, the counsel for the judgment-debtor made a statement that he did not want to pursue his application dated September 16, 1974. The applications were opposed by he decree-holder.

4. The executing Court held that notice under O. 21, R. 66 had been served upon the judgment-debtor and that application under O. 21, R. 89 was not maintainable. Consequently it dismissed the objection petition of the judgment-debtor. She went up in appeal before the Additional District Judge, Amritsar, who dismissed it. She has come up in revision to this Court.

5. The first contention of the learned counsel for the petitioner is that the application under O. 21, R. 89 was maintainable as the petitioner had not filed any application under O. 21, R. 90 of the Code, He argues that the application dated September 16, 1974 could not be treated under O. 21, R. 90 of the Code. He also submits that in case that application was to be treated under O. 21, 90, then the Court should have given option to the petitioner to withdraw either that application or the application under O. 21, R. 89 and to pursue the other application.

6. I have given a thoughtful consideration to the argument of the learned counsel but regret my inability to accept it. Before discussing the facts of the case, it will be appropriate to refer to the provisions of O. 21, Rr. 89 and 90. Rule 89 relates to the applications to set aside sale on deposit and R. 90 to applications to set aside sale on the ground of irregularity or fraud. Rule 89(2) provides that if a person had made an application under R. 90 to set aside the sale of immovable property, he shall not be allowed to make an application under R. 89 unless he withdrew the former application. The said rule reads as follows:-

'89(2). Where a person applies under R. 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 this rule.'

Under R. 90, the judgment-debtor or any other person whose interest are affected by the sale, can apply to the Court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting the sale. From a reading of the above two rules it is apparent that the judgment-debtor has no right to apply for setting aside a sale under O. 21, R. 89, in case he had filed an application for setting it aside under O. 21, R. 90, and in case he first filed an application under O. 21, R. 89 and thereafter an application under O. 21, R. 90, he has no right to prosecute the earlier application. The aforesaid two provisions came up for interpretation before the Supreme Court in Shiv Prasad v. Durga Prasad, AIR 1975 SC 957, wherein it was held:--

'An application under R. 89 validly made on the date of its presentation cannot be allowed to be prosecuted until the subsequent application filed under R. 90 is withdrawn. But it cannot be allowed to be made or be deemed to have been made unless the prior application filed under R. 90 is withdrawn.

The words used in the sub-rule are 'make or prosecute'. If it were to be held that the applicant is not entitled merely to prosecute his application under R. 89 unless his application under R. 90, then the word 'make' would become redundant. In order to bring about the true intention of the Legislature, effect must be given to both the words. If a person has first applied under R. 90 to set aside the sale, then, unless he withdraws his application, he is not entitled to make and prosecute an application under R. 89. The application even if made will be deemed to have been made only on withdrawal of the previous application. If, however, a person has filed an application under R. 89 first and thereafter another application under R. 90, he will not be allowed to prosecuted the former unless he withdrew the latter.'

Now it is to be seen whether the application dated September 16, 1974 was under O. 21, R. 90 or not. No doubt it is true that in the application it has been stated that the sale of the property was void. The reason for saying that it was void, was stated to be that there had been material irregularities and fraud in publishing and conducting the sale. These words are the same which have been used in O. 21, R. 90. Merely from the fact that particulars of fraud or irregularities have not been given, it cannot be held that the application was not under O. 21, R. 90 of the Code. After a reading of the application no doubt is left in my mind that it was an application for setting aside sale under O. 21, R. 90. It may also be mentioned that the petitioner also treated it as such as in her application dated September 23, 1974, under Order 21, rule 89, she reserved her right to the objections filed by her in the Court to set aside the sale. The contention of Mr. Awasthy, learned counsel for the petitioner, that the application dated September 16, 1974, cannot be treated under Order 21, rule 90, rule has, therefore, no substance.

7. In view of Order 21, rule 89, if an application under Order 21, rule 90 was pending in the executing Court, the petitioner had no right to make an application under O. 21, R. 89. If she wanted to do so, she should have withdrawn first the application under O. 21, R. 90. The petitioner filed an application under O. 21, R. 89, in spite of the fact that an application under O. 21 R. 90 was pending. The limitation for filing an application under O.21, R. 89, or rule 90 is 30 days from the date of the sale. She filed both the applications within 30 days of the sale and thus these were within limitation. But as already observed above, the application dated September 23, 1974 was not maintainable in view of the pendency of the application under O. 21, R. 90. The counsel for the petitioner withdrew that application on November 23, 1974. On that date, the time for filing an application under O. 21, R. 89, had passed. The application under O. 21, R. 89 can be said to be duly presented on Nov. 23, 1974 but as the limitation for filing that application had expired, consequently it cannot be treated to be within limitation and is liable to be dismissed as such.

8. The contention of the leaned counsel that it was the duty of the Court to ask for the option of the petitioner as to whether she wanted to proceed with the application under O. 21, R. 89 or under O. 21, R. 90, has also no substance. The petitioner while making an application under O. 21, R. 89, stated specifically therein that she wanted to pursue the earlier application for setting aside the sale. In the circumstances the application under O. 21, R. 89, was not maintainable. The question of option therefore did not arise. Mr. Awasthy referred to a Division Bench judgment of the Allahabad High Court in Mt. Sarvi Beqam v. L. Ram Chandar Sarup, AIR 1925 All 778. In that case the judgment-debtor had in the first instance filed an application under O. 21, R. 89 and then an application under O. 21, R. 90 of the Code, The facts of that case are, therefore, distinguishable. At the time when an application under O. 21, R. 89 was filed, the judgment-debtor had the right to do so, but after filing an application under O. 21, R. 90, he could not prosecute it, Therefore, the observations in that case will not have any applicability to the facts of the present case. I, therefore, reject the contention of the learned counsel.

9. In the end it may be mentioned that the learned counsel for the petitioner sought to argue that she was not served with a notice under O. 21, R. 66 of the Code. This question, however, cannot be gone into in the revision petition as both the Courts, after taking into consideration the evidence, held that notice under the said rule had been served upon the petitioner. Mr. Awasthy brought to my notice various orders of the Court. I am also convinced that the notice had been served upon her. Therefore the contention is rejected having no substance.

10. For the reasons recorded above, the revision petition fails and the same is dismissed with no order as to costs.

11. Revision dismissed.


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