Mewa Singh and ors. Vs. Brahma Nand and ors. - Court Judgment

Excerpt:
.....finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge..........to amend the plaint on payment of rs.150/- as costs to the defendants, and remanded the case for retrial. the defendants took the costs but filed a second appeal from the order of remand. held: that the appeal was not competent as the defendants acquiesced in the order passed by the trial court by accepting the costs awarded to them.'4. to the same effect are the decisions in abdul rahmankhan v. failkus mohamadkhan, air 1934 nag 163(1) and h. m. hasan v. anna daulatrao kunbi, air 1941 nag 273.5. no decision taking a contrary view was cited before me.6. following these authorities, i hold that the petitioners, after accepting the costs paid by the respondents to them are estopped from questioning the impugned order.7. the result is that this petition fails and is dismissed. there will,.....

Judgment:
ORDER

1. This is a defendants' revision petition against the order passed by the lower Appellate Court permitting the plaintiffs to amend their plaint under the provisions of Order 6, Rule 17, Code of Civil Procedure.

2. A preliminary objection has been raised by the learned counsel for the respondents that the petitioners are estopped from challenging the impugned order, because they had accepted the costs subject to the payment of which the amendment had been allowed. The learned Additional District Judge had permitted the plaintiffs to amend the plaint subject to the payment of Rs.100/- as costs to the defendants. The costs were paid to the petitioners and accepted by them, and, therefore, they, according to the counsel for the respondents, could not question the said order.

3. After hearing the counsel, I find that there is merit in this objection. It has been laid down in a number of authorities that after the acceptance of the costs without protest, a party is estopped from challenging the order. Reference in this connection may be made to a ruling by Bhide J. in Sohan Lal v. Dhari Mal Ishar Das, AIR 1928 Lah 813(2), where it was observed:

'A party who has adopted an order of the Court and acted under it cannot after he has enjoyed a benefit under the order contend that it is valid for one purpose and invalid for another.

Defendants resisted the suit for rendition of accounts filed by the plaintiffs, pleading inter alia that no suit for accounts was maintainable on the facts alleged. The trial Court upheld that plea and dismissed the suit. On appeal the Court agreed with the trial Court that a suit for accounts was not maintainable on the facts alleged, but allowed the plaintiffs to amend the plaint on payment of Rs.150/- as costs to the defendants, and remanded the case for retrial. The defendants took the costs but filed a second appeal from the order of remand.

Held: that the appeal was not competent as the defendants acquiesced in the order passed by the trial Court by accepting the costs awarded to them.'

4. To the same effect are the decisions in Abdul Rahmankhan v. Failkus Mohamadkhan, AIR 1934 Nag 163(1) and H. M. Hasan v. Anna Daulatrao Kunbi, AIR 1941 Nag 273.

5. No decision taking a contrary view was cited before me.

6. Following these authorities, I hold that the petitioners, after accepting the costs paid by the respondents to them are estopped from questioning the impugned order.

7. The result is that this petition fails and is dismissed. There will, however, be no order as to costs.

8. Petition dismissed.