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Somayajulu Vs. Mahammad Azam Sahib - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in110Ind.Cas.528
AppellantSomayajulu
RespondentMahammad Azam Sahib
Cases ReferredTinkler v. Hilder
Excerpt:
practice - order directing restoration of suit dismissed for default on payment of a sum of money to defendant--payment to and acceptance of amount by defendant's vakil--defendant, whether debarred from questioning order in revision. - .....of the suit. the plaintiff's vakil accordingly tendered rs. 19 to defendant's vakil and he accepted the amount, the question is whether, having banefited to this extent by the court's order, he cai ioipxga that order in revision.it is quite clear that the petitioner will be out of court unless he can show that he receivsd the rs. 10 under compulsion. he relies upon manilal guzrati v. harendra lal roy 8 ind. cas. 79 ; 12 c.l.j. 558 which lays down that the ordinary rule in tinkler v. hilder (1819) 4 ex. 187 ; 7 d. and l. 61 ; 18 l.j. ex. 429 ; 13 jur. 664 ; 15 e.r. 1176 does not apply if 'the defendants had no ohoice in the matter.' in the present case it cannot be said that they had no choice. their vakil might hare said, 'i deny the validity of the order; i am taking it up oa.....
Judgment:

A suit was dismissed for default. The plaintiff applied for its restoration. The District Munsif ordered, that the suit would be restored if the plaintiff paid a sum of Rs. 10 to the defendants irrespective of the results of the suit. The plaintiff's Vakil accordingly tendered Rs. 19 to defendant's Vakil and he accepted the amount, The question is whether, having banefited to this extent by the Court's order, he cai ioipxga that order in revision.

It is quite clear that the petitioner will be out of Court unless he can show that he receivsd the Rs. 10 under compulsion. He relies upon Manilal Guzrati v. Harendra Lal Roy 8 Ind. Cas. 79 ; 12 C.L.J. 558 which lays down that the ordinary rule in Tinkler v. Hilder (1819) 4 Ex. 187 ; 7 D. and L. 61 ; 18 L.J. Ex. 429 ; 13 Jur. 664 ; 15 E.R. 1176 does not apply if 'the defendants had no ohoice in the matter.' In the present case it cannot be said that they had no choice. Their Vakil might hare said, 'I deny the validity of the order; I am taking it up oa revision, and I cannot accept money by virtue of an order which I do not recognize as valid.' So far from saying anything of the sort, he took the money and apparently he or his clients still have it.

In such circumstances Tinkler v. Hilder (2) governs the case, and no revision lies at the instance of defendants.

The petition is dismissed with costs.


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