1. In O.S. No. 95 of 1911, Ramnad Additional Sub-Court, a decree was passed on a mortgage and the mortgaged property was brought to sale in E.P. No. 884 of 1923. Defendants 19 to 21 objected to the execution, their objection was dismissed and they took the matter on appeal to the High Court. Defendants 15 to 17 attacked the sale under Order 21, Rule 90. Defendants 2 and 3 attacked the sale under Order 21, Rule 90.
2. Defendants 19 to 21 also deposited the decree amount on 3rd September 1924 and prayed to have the sale set aside under Order 21, Rule 89 (E.A. No. 193 of 1924). They obtained a stay of any further proceedings under Rule 89 pending disposal of their appeal in the High Court objecting to the execution itself. On 30th September 1925, the applications under Order 21, Rule 90 were allowed and the sale was set aside. Against this the vendee interested in items 1 to 4 appealed to the High Court on 26th October 1925 and the vendee interested in items 5 and 6 appealed to the High Court on 18th December 1925, C.M. As. 487 and 566 of 1925. It is with items 5 and 6 that the present case is concerned.
3. When the sale was set aside, defendants 19 to 21 first got their stay order in the High Court cancelled, and then applied to the Court in Ramnad District for permission to withdraw E.A. No. 193 of 1924 which they had filed under Order 21, Rule 89. The Sub-Court ordered on 1st December 1925. 'The application, E.A. No. 193 of 1924, will be dismissed as withdrawn,' and on 3rd December 1925 the deposit made by them under Order 21, Rule 89 was refunded.
4. Then on 9th November 1928 the High Court allowed the appeals 487 and 566 of 1925 and the sales were restored in full validity. Whereupon defendants 19 to 21 presented an application in the Sub-Court, E.A. No. 307 of 1928, under Section 151 and Order 21, Rule 89 praying that the sale be cancelled 'if necessary by reviving the proceedings in E.A. No. 193 of 1924 and by excusing the delay.' The lower Court finding that in substance the requirements of Rule 89 had been complied with, set aside the sale in respect of items 5 and 6. The vendee appeals. The time for an application under Order 21, Rule 89 is 30 days from the date of the sale under Article 166, Limitation Act, and the application of 1928 is obviously time barred, unless the applicants can make use of their original application which was filed on 3rd September 1924 and ordered to be dismissed on 1st December 1925.
5. As clearly set forth in Tripura Sundarammal v. Abdul Khadar 1933 Mad. 418 the prior application can only be used if there should have been either no final disposal or a wrong dismissal, p. 504. This is a Full Bench decision, and since Mr. Venkatarama Sastri, who appears for the respondents fully accepts this statement of the law his argument is necessarily confined to showing either that there was no final disposal, or that the Court acted wrongly in dismissing the application. We do not see how it can possibly be said in this case that there was no final disposal. It is obviously quite outside that line of cases where some such order as 'struck off' has been explicitly or implicitly passed, for statistical purposes. Because the very essential of an application under Order 21, Rule 89 is the deposit, and when the deposit is withdrawn, there is no room for suggestion that the unequivocal order 'dismissed' can mean otherwise than that there is a final disposal. If it were not so, it would have to be held that no application, no matter what order is passed, is over disposed of finally. Nor can it be held that the Court acted wrongly. Mr. Venkatarama Sastri relies strongly upon the phrase 'may be pleased to grant permission' appearing in the application for withdrawal, and argues that the Court wrongly decided that a withdrawal was necessary, and ought to have granted leave to with-draw with liberty to institute a fresh application. But this is to overlook Order 23, Rule 4. Such leave is not and need not be granted in execution petitions. The petitioner has a right to withdraw his petition whenever he likes : see Ram Prasad Rai v. Maheskant Choudhry 1922 Pat. 525 if authority need be quoted for so obvious a proposition and if a petitioner asks permission to with, draw, the Court cannot refuse that permission, and its consequent order of dismissal cannot be held to be wrong. The Court is not in the least concerned with the reasons for withdrawal, and is not required to adopt such reasons as the justification for its order. At the plain demand for withdrawal, its dismissal is right and 'permission' here is only inserted in the petition for withdrawal by way of courtesy. This finding removes this case from the second category where the Court has made some mistake-and ex debito justitae is constrained to set the matter right. The difficulty under which the respondents labour in face of the pronouncement in Tripura Sundarammal v. Abdul Khadar 1933 Mad. 418 is well illustrated by the cases cited in support of the argument on, their behalf.
6. In Chintaman Damodar Agashe v. Balshastti (1892) 16 Bom. 294 it is held that an order,
this darkhast is disposed of. This darkhast to be placed on the record along with the papers mentioned below,
did not amount to a final disposal; but the terms are in no way parallel to those of the present dismissal order coupled' with the withdrawal of the deposit. In Satyanarayana v. Narayanaawami 1918 Mad. 1010 it is held that an order
'struck off' when 'it is difficult to avoid a suspicion that the striking off the file is not altogether unconnected with the quarterly statistics,
is not a final disposal, and again the terms and circumstances are very different from the present case. In Quamaruddin Ahmed v. Jawahar LaL (1905) 27 All. 334 the order (that the record be not sent to the Collector's Court) is held 'to be in no sense a final order,' which can hardly be said of the present order 'dismissed.'
7. These cases therefore in no way advance the respondent's argument. And there is certainly no case which has ever held that an order 'dismissed' upon a petitioner's application for withdrawal is wrong.
8. It is then argued that the petition should be allowed to proceed on some general ground of equity. Section 14, Limitation Act, obviously has no direct application, for the petitioner was prose outing no other civil proceeding in a Court without jurisdiction, but it is argued, its principle should be applied, because if petitioners had not thought the Sub-Court's cancellation of the sale to be final, they would not have withdrawn their petition. This is precisely one of those equitable considerations which the Judicial Committee has ruled to be out of place in construing the provisions of the Limitation Act Nagendra Nath v. Suresh Chandra 1932 P.C. 165 and it was in the light of that ruling, because certain decisions of our Court rather tended to import such considerations, that the Full Bench in Tripura Sundarammal v. Abdul Khadar 1933 Mad. 418 was constituted. It is now too late to cite stray observations in Muthukorakkai v. Madar Ammal 1920 Mad. 1 as warranting the importation of equity, for that ruling has been fully discussed and explained in the later Full Bench ruling in Tripura Sundarammal v. Abdul Khadar 1933 Mad. 418 which Mr. Venkatarama Sastri does not seek to traverse. Nor can it be now said on the strength of the older ruling that a new cause of action arises upon the removal of the obstacle. It would indeed be a curious state of the law if a party obliged by statute to petition and deposit within 30 days were allowed to take advantage of the peculiar circumstances of this case and so to have three years in which to apply to set aside the sale upon the 'new cause of action' arising when the High Court held the sale to be valid.
9. The short answer to such a phantasmagoria is that persons who claim peculiar statutory privileges must strictly observe the statute. The petitioners [were bound to apply within 30 days, and when they withdrew their application on the hazardous supposition that the cancellation of the sale would be upheld on appeal, they acted entirely at their own risk. No one, and certainly not the Court, pressed them to withdraw. They themselves had obtained a stay of the application and common prudence should have prompted them to abide the result of the appeal. Having chosen to gamble on that result, they cannot now hold the Court to blame, or pose as the innocent victims of circumstances.
10. The judgment supporting the order under appeal is marred by special pleading. It cannot really be held that petitioners' withdrawal was conditional, or they merely invited the Court to strike off their application and in discussing the question of equity the learned Subordinate Judge had not the advantage of the decision in Tripura Sundarammal v. Abdul Khadar 1933 Mad. 418. The appeal is accordingly allowed with costs throughout from defendants 19 to 21. E.A. No. 307 of 1928 must stand dismissed so far as it concerns respondent 2 below.