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Dhrubendra Deb Roy and ors. Vs. Kumarendra Deb Roy and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 258 of 1952
Judge
Reported inAIR1959Cal19
ActsEvidence Act, 1872 - Section 115; ;Code of Civil Procedure (CPC) , 1908 - Order 41, Rule 19
AppellantDhrubendra Deb Roy and ors.
RespondentKumarendra Deb Roy and ors.
Appellant AdvocateSarat Chandra Jain, ;Rabindra N. Bhattacharjee and ;Satkori Chattopadhyay, Advs.
Respondent AdvocateApurbacharan Mukherjee Mukherjee and ;Samarendra N. Banerjee, Advs.
DispositionAppeal dismissed
Cases ReferredGppesh Chandra Aditya v. Renode Lal Das
Excerpt:
- .....that case a prayer for amendment of the plaint was allowed on condition of payment of rs. 150/-as costs. the costs were paid at once and were received by the defendants on protest. on appeal by the defendants against this order granting an amendment of the plaint a preliminary ground was urged that as the defendants acquiesced in the order of the court in so far as they received the adjournment costs, they could not be permitted to question the propriety of the order. this contention was rejected by the court in view of the fact that the defendants were compelled to accept payment of the costs under orders of the court and they did so under protest, and it was pointed out that the order of the court was so framed as to make it practically obligatory upon the defendants to receive the.....
Judgment:

K.C. Das Gupta, J.

1. The appellants who are the plaintiff's in a suit for removal of the defendant from the shebaitship of the Idols Sri Sri Iswari Hanseswari and others, applied for the appointment of a receiver pending the suit. That application was rejected by the trial court on the 18th of August, 1951. An appeal was preferred against this order of refusal to the District Judge, Hooghly, and on the 5th of April, 1952, the learned Subordinate Judge to whom the appeal had been transferred for disposal passed an order allowing the appeal 'on consent'. The defendant prayed for review of this order allowing the appeal and on the 22nd of May, 1952, the learned Judge passed the following order :

'The review petition will be allowed and the appeal will be restored to file after setting aside the order passed by me on 5th April, 1952, if the petitioner puts in the entire costs of the opposite party together with the pleader's fee of Rs. 16/- on or before 31st May, 1952. In default, the application shall stand dismissed with costs and pleader's fee Rs. 16/-.'

This amount was put in before the 31st of May, 1952 as directed. On the 11th of June. 1952, a payment order for this amount was passed in favour of the plaintiffs.

2. In this appeal which is against the conditional order under which the review petition was allowed and the appeal was restored to file by the Judge's order of the 23rd of May, 1952, a preliminary point has been raised on behalf of the respondent that the appellants having applied for payment and received an order for payment of the costs mentioned above, are precluded from appealing against that order.

3. The principle that has to be applied in these cases was laid down by Mookerjee, J. in the case of Manilal v. Harendra Lal, 12 Cal LJ 556 (A), in these words :

'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.' In that case a prayer for amendment of the plaint was allowed on condition of payment of Rs. 150/-as costs. The costs were paid at once and were received by the defendants on protest. On appeal by the defendants against this order granting an amendment of the plaint a preliminary ground was urged that as the defendants acquiesced in the order of the Court in so far as they received the adjournment costs, they could not be permitted to question the propriety of the order. This contention was rejected by the Court in view of the fact that the defendants were compelled to accept payment of the costs under orders of the Court and they did so under protest, and it was pointed out that the order of the Court was so framed as to make it practically obligatory upon the defendants to receive the money. Mookerjee, J. observed further : 'If the learned Judge had directed the costs to be paid into Court to the credit of the defendants and they had voluntarily withdrawn the sums deposited, they might have been debarred from questioning the validity of the order.'

4. In the case of Banku Chandra v. Marium Begum, 21 Cal WN 232: (AIR 1917 Cal 546) (SB) (B), a preliminary objection on similar grounds fell to be considered by Sandcrson, C. J. and Woodroffe and Mookerjee, JJ. The order passed was :

'Upon the said Syed Ashrafuddin Ahmad within three weeks from the date hereof paying to the Defendants' Attorney, Babu Rirendra Nath Mittra, the sum of Rs. 250/- towards the Defendants' costs of and incidental to this application, on the said Babu Birendra Nath Mittra undertaking to refund any surplus that may be found .... .... the said order in so far as it dismissed this suit for want of prosecution be set aside and this suit be restored to its file .... ...... And it is further ordered that the said Syed Ashrafuddin Ahmad do pay to the defendants their costs of and incidental to this application to be taxed by the Taxing Officer of this Court.'

In pursuance of that order Rs. 250/- was paid by Ashrafuddin Ahmad to the Defendants' solicitor and was accepted by him. In resisting the preliminary objection it was contended on behalf of the appellant that the appellant could not help himself as under the order Ahmad was bound to pay Rs. 250/- and the defendants' solicitor was bound to accept it. Sanderson, C. J. held, the other two learned Judges agreeing with him that when the defendants took advantage of the order which directed the payment to the defendants of their costs of and incidental to the application, they precluded themselves from appealing against that order.

5. Mr. Jana drew our attention to several cases in which similar preliminary objections were disallowed. It is clear however that the principle which was laid down in the above cases was not at all dissented from in these cases but it was found that the facts of the cases did not make that principle applicable. In the case of Hurrkbux Deora v. Johurmull Bhotoria : AIR1929Cal796 , when a decree-holder had taken out of Court a sum of money awarded to him by a decree for Rs. 12,946-4-3 pies and brought the appeal to establish his right to the balance of the amount found by the Assistant Referee to be due to him as also for certain other costs not awarded to him and the objection was taken that the appellant was incompetent to proceed with this appeal, Rankin, C. J. laid down the correct principle to be that where the defendant is seeking to challenge an order after accepting the benefit of a term or condition imposed by the opposite party at whose instance the order was made, the objection should prevail and pointed out :

'So far as the final decree in a suit is concerned, there is no reason for saying that the plain-till cannot approbate the decree in respect of the sum which it awards to him and reprobate it in respect of the sum which it refuses to him.'

In this view, His Lordship rejected the preliminary objection. In the case of Asia Khatun v. Nurjahan Khatun : AIR1933Cal39 an objection was taken that before filing the appeal against the order of the Subordinate Judge setting aside the sale, the decree-holder had enjoyed the benefit of the deposit to a certain extent as the rent decree against the mortgagee decree-holders had been dismissed on full satisfaction. In overruling this objection their Lordships pointed out that this rule that a party having acted under an order and enjoyed the benefit of it was precluded from challenging its correctness, was based on no principle; that this rule was only a special phase of the rule that a party cannot either in course of a litigation or in dealing in pais occupy inconsistent positions; upon that rule election was founded, and that where a man had an election between several inconsistent courses of action he would be confined to that which he first adopted; the election, if made with the knowledge of facts, was in itself binding. They pointed out that the election must be, however, a voluntary act not forced upon him by circumstances over which he had no control and notwithstanding his protest.

6. The same view was taken in the case of Gppesh Chandra Aditya v. Renode Lal Das : AIR1936Cal424 where at p. 556 (of CWN) : (at pp. 425-426 of AIR) their Lordships said :

'In order that a preliminary objection may succeed, the first condition is that the decree or order must be, in essence a conditional decree or order conferring a benefit on the appellant. If the decree or order is not a conditional order, the principle by which an appeal is held to be barred has no application. There is no principle that a plaintiff who has got a part-decree loses his right of appeal in respect of the part of his claim disallowed, either by receiving payment from the judgment-debtor or by executing the decree which he has obtained. In such a case the decree made confers on him a benefit and by getting the decretal amount either amicably or by execution, he obtains the benefit under the decree, but inasmuch as the decree so obtained is not dependent upon any term or condition connected with the dismissal of the part of his claim, he does not lose the right of appeal by realising the decretal amount, or by accepting payment from the judgment-debtor ..'.

Consideration of these cases shows clearly that the rule that if a party adopts an order of a court and takes a benefit thereunder, he cannot be allowed to challenge the correctness of that order, has been consistently laid down in this Court. Whether in a particular case the facts justify the conclusion that a party has adopted the order by taking the benefit or not will depend necessarily on the nature , of the order and other circumstances. In the present case, the order passed was a conditional order that on deposit of certain amounts into Court the review petition will be allowed and the appeal restored to file. The only basis for the plaintiffs' applying for payment and receiving the payment order through their agent is that the order that had been passed was a correct, valid and acceptable order; but for that there could be no scope for their applying for such payment. It must therefore be held that they adopted the order and received the benefit thereunder and having elected to treat the order as valid they cannot not (now?) be allowed to challenge that order in appeal.

7. Mr. Jana has tried to persuade us that the rule that if a party adopts an order by taking the benefit thereunder, he should be precluded from challenging the correctness thereof, should not be applied in a case where the necessary elements sufficient to establish the party accepting the benefit have not been proved. In my judgment, the rule that has been laid down in the cases above mentioned is a proper and salutary rule and there can be no reason lor raising any doubt or dissent from it.

8. My conclusion therefore is that the preliminary objection should succeed.

9. The appeal is accordingly dismissed with costs, hearing fee live gold mohurs. Let the paper-book costs be taxed on payment by the respondent of the taxing costs.

Debabrata Mookerjee, J.

10. I agree.


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