1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.2013/08 Smt. Geeta Devi Khunteta vs. The Recovery Officer & Ors. Date of order : 20/1/2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri N.K. Maloo for the petitioner. ****** REPORTABLE This writ petition has been filed by the petitioner against the order dated 31.1.2008 by which the application of the petitioner under Rule 60 of the Procedure for Recovery of Tax contained in Second Schedule, Appendix-3 of the Income-tax Act was rejected. Shri N.K. Maloo, learned counsel for the petitioner has submitted that the application was rejected by the Debt Recovery Tribunal holding that provisions of Section-5 of the Limitation Act are not applicable to such an application and the application has been moved with delay. Learned counsel submitted that the learned Tribunal has wrongly held that provisions of Section-5 of the Limitation Act are not applicable. He relied on the judgement of 2 Supreme Court in Kerala State Electricity Board vs. T.P. Kunhaliumma-(1976) 4 SCC 634 wherein with reference to Article 137 of the Limitation Act, it was held that in dealing with applications under Section 16 of the Telegraphs Act, 1885 for compensation, the District Judge acts as a civil court and hence Article 137 applies. Learned counsel also relied on the judgement of Supreme Court in Philomina Jose vs. Federal Bank Ltd. & Ors.-(2006) 2 SCC 608 and argued that right of redemption under Order 34 Rule 5(1) subsists until there is final determination on whether or not to set aside the sale under Order 34, either by way of appeal or revision. In this case, earlier than filing the application under Section 60, an application under Rule 61 was filed by the petitioner alleging that the property was sold undervalued and even though the market value of the property was much higher, but the amount that was received by sale through auction was on lower side. Such an application was earlier rejected by the Debt Recovery Tribunal vide order dated 3 28.2.2003. The petitioner approached the Supreme Court against the said order and on being pointedly asked about the fate of same, learned counsel for the petitioner submitted that Special Leave to Petition against the said order was dismissed. In order to appreciate the controversy, it would be apposite to reproduce Rule 60 and 61, supra which are as under:- “60.Application to set aside sale of immovable property on deposit- (1) Where immovable property has been sold in execution of a certificate, the defaulter, or any person whose interests are affected by the sale, may, at any time within thirty days from the date of the sale, apply to the Tax Recovery Officer to set aside the sale, on his depositing- (a) the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered with interest thereon at the rate of fifteen per cent per annum, calculated from the date of the proclamation of sale to the date when the deposit is made; and (b) for payment to the purchaser, as penalty, a sum equal to five per cent of the purchase money but not less than one rupee. (2) Where a person makes an application under rule 61 for setting aside the sale of his immovable property, he shall not, unless he withdraws that application, be entitled to make or prosecute an application under this rule. 61. Application to set aside sale of immovable property on ground of non- 4 service of notice or irregularity- Where immovable property has been sold in execution of a certificate, such Income-tax Officer as may be authorised by the Chief Commissioner or Commissioner in this behalf, the defaulter, or any person whose interests are affected by the sale, may, at any time, within thirty days from the date of the sale, apply to the Tax Recovery Officer to set aside the sale of the immovable property on the ground that notice was not served on the defaulter to pay the arrears as required by this Schedule or on the ground of a material irregularity in publishing or conducting the sale: Provided that- (a) no sale shall be set aside on any such ground unless the Tax Recovery Officer is satisfied that the applicant has sustained substantial injury by reason of the non-service or irregularity; and (b) an application made by a defaulter under this rule shall be disallowed unless the applicant deposits the amount recoverable from him in the execution of the certificate.” A perusal of the above would show that sub-rule (2) of Rule 60 clearly provides that where a person makes an application under rule 61 for setting aside the sale of his immovable property, he shall not, unless he withdraws that application, be entitled to make or prosecute an application under this rule. The judgement in Philomina Jose, supra on which reliance is placed by learned counsel proceeds on the same analogy where 5 it was held with reference to Order 34 Rule 5 of CPC that the right of mortgagor to redeem the mortgaged property subsists until there is a final determination of proceedings to set aside the sale under Order 34 Rule 5, either by way of appeal or revision. In the instant case, that right no longer subsists in favour of the petitioner, the order passed by the Tribunal rejecting the application under Section 61 having attained finality because challenge thereagainst made by the petitioner has failed even upto the Supreme Court. In the setting of Rules also, Rule 61 appears after Rule 60 and purposely so because only one of the remedies is available to the objector. If he exhausts a remedy under Rule 61 and if that has attained finality against him, obviously as per Rule 60(2), he would not be in a position to withdraw that application thereafter and therefore the right for withdrawal of such an application subsists only until it is not decided or on the analogy of cited Supreme Court judgement, appeal or revision thereagainst is pending. I therefore do not find any merit in 6 this writ petition, which is accordingly dismissed. (MOHAMMAD RAFIQ), J. RS/