An application under Order XXI, Rule 89, C.P.C. for setting aside the sale of property cannot be made while an application under Order XXI, Rule 90, C.P.C. is pending.

SINHA, J. :- This is a First Appeal From Order dated 1-5-1976 passed by the Civil Judge. Azamgarh, in execution proceedings.

2. The facts leading up to this appeal can briefly be stated as under :

3. Respondent No. 1 obtained a decree against the appellants for Rupees 28,585.85 from the Calcutta High Court. In execution of that decree, a house, shops and bhumidhari plots belonging to the appellants were attached. The auction sale held in respect of bhumidhari plots was cancelled, while the house and shops were sold for Rs. 1,44,000.00 on 8-1-1976. Thereafter on 4th February, 1976, the appellants filed objections under Section 47 C.P.C. On 6th February, 1976, the appellants filed an application under Order XXI, Rule 89, C.P.C. for setting aside the auction sale, and deposited the entire amount as required under the said provision of law. The objections under Section 47, C.P.C. were dismissed as not pressed on 17th of April, 1976. The application under Order XXI, Rule 89 was rejected by the court below on the ground that the objections purporting to have been filed by the appellants under Section 47, C.P.C. were in effect objections under Order XXI, Rule 90, C.P.C. and, in view of the provisions contained in sub-R. (2) of Rule 89 of Order XXI, no application under Order XXI, Rule 89 for setting aside the sale could be made while the application under Order XXI, Rule 90 was pending. In the opinion of the court below, the application under Order XXI Rule 89 could be deemed to have been made only on 17-4-1976, when the objections purporting to be under Section 47, C.P.C. were got rejected by the appellants. The limitation for filing the application under Order XXI, R. 89, C.P.C. having expired before it, the application was barred by time.

4. Order XXI, Rule 89 (2) reads as follows:

"Where a person applies under Rule 90 to set aside the sale of his immoveable property, he shall not, unless he withdraws his application, be entitled to make or prosecute an application under this Rule."

5. The expression to make or prosecute occurring in Order XXI, Rule 89 (2) came in for consideration in the case of Shiv Prasad v. Durga Prasad (AIR 1975 SC 957). It was observed (at page 959) :

"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 he withdraws his application under Rule 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 Rule 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 Rule 89 first and thereafter another application under Rule 90, he will not be allowed to prosecute the former unless he withdrew the latter."

6. In view of the aforesaid rule laid down by the Supreme Court it must follow that if the objections filed by the appellants on 4-2-1976 were objections under Order XXI, Rule 90, C.P.C. the application moved by them on 6th of February, 1976 under Order XXI, Rule 89, C.P.C. could only be deemed to have been made on 17th of April, 1976 viz. the date on which the objections dated 4.2.1976 were rejected. The question for consideration, therefore, is whether the objections dated 4-2-1976 filed by the appellants were objections under Section 47 of the Code of Civil Procedure or they were objections under Order XXI, Rule 90, C.P.C. It is true that in the opening sentence of the objections it was mentioned by the appellants that the objections were being filed under Section 47 C.P.C. It cannot, however, be decided on that basis alone as to whether the objections were actually under Section 47, C.P.C. or they were objections falling under O