9911796707
TMI Blog1975 (2) TMI 130X X X X Extracts X X X X X X X X Extracts X X X X ..... sband 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 ₹ 7,580/- 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 ₹ 70,000/. The original defendant died during the pendency of the first appeal in the High Court. His widow was substituted. The fir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on held on 29-11-1967 which was pending and that he had filed on 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 ₹ 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 Pairevi for fresh service of notice on the opposite pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... examine the correctness of this point as it involved investigation of new facts which for the first time could not be permitted in this Court. 6. The only question for determination in this appeal is whether the application of respondent No. 1 under Order 21 Rule 89 of the Code was not maintainable and liable to be dismissed as such, and whether it has wrongly been allowed by the Courts below. 7. Mr. Hardayal Hardy, learned Counsel for the appellant, strenuously contended that respondent No. 1 was not entitled to make an application under Order 21 Rule 89 of the Code unless he effectively withdraw his application under Order 21 Rule 90 and an order of the Court to that effect was passed. Counsel further submitted that instead of aski ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the previous application. If, however, a person has filed an application under Rule 89 first and thereafter another application under Rule 90, he will not be allowed to prosecute the former unless he withdrew the latter. 10. Section 310A was added in the Code of 1882 by Act 5 of 1894. This section corresponds to Order 21 Rule 89 of the Code of 1908. The proviso to Section 310A which corresponds to Sub-rule (2) merely used the words he shall not be entitled to make an application under this section . In the case of Rajendra Nath Haldar and Ors. v. Nilratan Mitter and Ors. an application under Section 310A of the Code of 1882 was first made and on the following day applicants presented an application under Section 311 (corresponding to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed prior to the making of the application under Rule 89. Thereupon he becomes entitled to make the latter application. Every applicant has a right to unconditionally withdraw his application and his unilateral act in that behalf is sufficient. No order of the Court is necessary permitting him to withdraw the application. The Court may make a formal order disposing of the application as withdrawn but the withdrawal is not dependent on the order of the Court. The act of withdrawal is complete as soon as the applicant intimates the Court that he withdraws the application. Respondent No. 1 has clearly done so here not only by mentioning in his application under Rule 89 that he was withdrawing his application under Rule 90 but also by filing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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