SHIV PRASAD versus DURGA PRASAD & ANR.

An applicant who has filed an application under Order 21 Rule 90 is entitled to make or prosecute an application under Order 21 Rule 89 as soon as he unconditionally withdraws the Rule 90 application, and withdrawal is effective upon intimation to court, not dependent on formal court order.

Parties: Appellant: Shiv Prasad; Respondent No. 1: Durga Prasad; Respondent No. 2: Respondent no. 2
Jurisdiction: India
Judgment Date: 12 February 1975
Procedural Posture: Civil Appeal / Appeal by Special Leave From Allahabad High Court in F.a. No. 443 of 1968
Outcome: appeal dismissed
Legal Topics: Withdrawal of Application, Execution Proceedings, Order 21 Rule 89, Order 21 Rule 90

Civil Procedure Withdrawal of Application Execution Proceedings Order 21 Rule 89 Order 21 Rule 90

Case Brief

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Parties

Shiv Prasad

Appellant

Durga Prasad

Respondent No. 1

Respondent no. 2

Respondent No. 2

Procedural Posture

Civil Appeal / Appeal by Special Leave From Allahabad High Court in F.a. No. 443 of 1968

Legal Issues

1 Whether an application under Order 21 Rule 89 is maintainable when withdrawal of earlier application under Order 21 Rule 90 is not formally recorded by the Court
2 Interpretation of Order 21 Rule 89(2) of Code of Civil Procedure, 1908

Ratio Decidendi

Court Disposition

appeal dismissed

Orders

Application filed by respondent No. 1 under Order 21 Rule 89 of the Code has rightly been allowed.
Appeal is accordingly dismissed with costs in favour of respondent No. 1.