The distinction between the withdrawal of a writ petition and a writ petition becoming infructuous has implications on the survival of the cause of action.

The petitioner-Smt. Saliha Begum is the auction purchaser of a house that belonged to the husband of the respondent No. 4, namely, Sri Mahfooz Ahmad. The respondent No. 4 Smt. Ashma Khatoon is stated to have acquired the property through a sale deed after the said property became subject matter of an attachment in auction proceedings that arose out of a default in repayment of a loan borrowed by Sri Mahfooz Ahmad. The proceedings of auction came to be questioned by the respondent No. 4 in terms of Section 285 -I of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 which was the provision then available for filing objections. The same was rejected and further proceedings in relation thereto by way of an appeal also came to be dismissed. On the rejection of the Appeal, a Revision was filed before the Board of Revenue that was dismissed on merits on 15.2.2007, whereafter the respondent No.4 filed a Writ Petition no. 2493 (MS) of 2007 that came to be ultimately dismissed on 5.8.2013.

2. The petitioner-auction purchaser started claiming possession over the said property and for that she moved an application before the District Magistrate who passed an order on 14.8.2013 directing the Sub-Divisional Magistrate to take action as per law. The Sub-Divisional Magistrate passed an order on 18.8.2013 calling upon the Naib-Tahsildar to proceed to take steps for delivering possession to the petitioner.

3. In the meantime, the petitioner aggrieved by the slow progress in the delivery of possession filed a writ petition giving rise to this recall application, being Writ Petition No. 8133 (MB) of 2013 and prayed for a Mandamus that the respondents be directed to consider the application for delivery of possession and to act accordingly by executing the same.

4. The District Magistrate by the order dated 12.9.2013 on the presentation of the writ petition was summoned by the High Court to appear in person alongwith the records and notices were also issued to the respondent No.4. The District Magistrate filed an application dated 6.11.2013 supported by an affidavit dated 31.10.2013. The respondent No.4 had also put in appearance by filing a counter affidavit on 1.10.2013. The Division Bench that had summoned the District Magistrate passed an order on 3.10.2013 which is to the following effect: -

"In pursuance to the order dated 12.9.2013, passed by this Court, Ms. Roshan Jacub, District Magistrate, Gonda is present. She makes a statement that auction was held in the year 2001. Mr. Anil Kumar Mishra, Sub Divisional Magistrate is also present. A statement has been made by him that the auction was held without publication in the newspaper in favour of the petitioner.

Keeping in view the fact that the auction was held without following statutory mandate as provided in U.P. ZALR Act and rules framed thereunder, we direct the District Magistrate to file an affidavit containing parawise reply to the writ petition and also bring on record all material with regard to auction and sale of the property of the respondent No.4 within two weeks, rejoinder thereto be filed within the next one week.

The respondents shall place on record each and every order passed by this Court in earlier writ petition before Hon'ble Single Judge.

Rejoinder affidavit to the counter affidavit filed by Mr. Rajendra Prasad on behalf of opposite party No.4 which is taken on record be filed within three weeks. List in the first week of November, 2013.

In the meantime, it is provided that status quo shall be maintained by the parties with regard to the premises in question. However, in case the Collector finds that the private respondent has no house to live, then she may be permitted to reside therein till the next date of listing.

Personal appearance of the officer is exempted."

5. The affidavit of the District Magistrate categorically narrates the litigative history of the case and then, in paragraph - 15 indicates that the sale deed was executed on 24.9.2013