Judgement

Order of Reference.

SYED QAMAR HASAN, J. : -This application in revision on behalf of the plaintiff is directed against the order dated 15th March, 1954 of the District Munsif, Cuddapah setting aside an ex parte decree in Small Cause Suit No. 106 of 1953.

2. The learned advocate for the respondent raised the preliminary objection that as the counsel for the petitioner in the Court below has accepted the costs awarded by the Court below as a term for setting aside the ex parte decree, he cannot now challenge the propriety of the order under revision. In support of his contention, he placed reliance upon Venkatarayudu v. Ramakrisnnayya, 58 Mad LJ 137 : (AIR 1930 Mad 268) (A). It has been held therein that where an order is made restoring a suit which has been, dismissed for default on condition of paying certain sum as costs for defendant, the latter if he accepts costs unconditionally cannot afterwards question the order. Venkata Subba Rao J. after reviewing a number of Indian and English decisions observed :

"What is the principle underlying these decisions? When an order shows plainly that it is intended to take effect in its entirety and that several parts of it depend upon each other, a person cannot adopt one part and repudiate another."

Ramesam J. elaborated the point by saying that the true basis of the rule is not estoppel by conduct but that a person cannot both approbate and reprobate. If the authorities upon which these pronouncements are based are still good law, I have no choice but to follow them and pass an order in accordance therewith. But I find that the scope of the doctrine of approbate and reprobate was considered by the House of Lords in two cases. In Evans v. Bartlam, 1937 AC 473 (B), it has been held that a judgment-debtor, who asks for and obtains a stay of execution does not thereby approbate the judgment or elect to treat it as binding so as to preclude him from thereafter seeking to set it aside whether on appeal or otherwise. In the case of Lissenden v. C. A. V. Bosch, Ltd., 1940 AC 412 (C). Viscount Maugham discussed the expression "approbate and reprobate" and explained its scope. The learned Law Lord at page 418 of the report, after quoting Lord Cairns L. C. from Cordington v. Cordington, (1875) 7 HL 854 at p. 861 (D), observed :

"In the light of these authorities it seems that the phrase "you may not approbate or reprobate or the Latin "quod approbo non reprobo", as used in England is no more than a picturesque synonym for the ancient equitable doctrine of election, originally derived from the civil law. ..... ...

It is perhaps well to observe here that the equitable doctrine of election has no connection with the common law principle which puts a man to his election (to give a few instances only) whether he will affirm a contract induced by fraud or avoid it, whether he will in certain cases; waive a tort and claim as in contract, or whether in a case of wrongful conversion he will waive the tort and recover the proceeds in an action for money had and received. These cases mainly relate to alternative remedies in a Court of justice..............My Lords. I am quite unable to see how this doctrine can be made to apply to the rights of a litigant to anneal." In this view of the law. with which. I with respect, agree, the preliminary objection ought to fail.

3. The portion of the judgment of the learned District Munsif which was strenuously challenged before me runs as follows :

"The learned counsel for the petitioner has also, relied upon Sri Newas v. Durga Prasad, 1947 All LJ 204 : (AIR 1947 All 125) (E), for the proposition that the filing of a draft bond as security is itself sufficient and it is not necessary under the provisions of S. 17 of the Provincial Small Cause Courts Act that the security should have been accepted in to to. In the above quoted decision, a reference is made to the Full Bench decision in Ram Bharose v. Ganga Singh, ILR 54 All 154 : (AIR 1931 All 727) (F), wherein it was held that the question whether the security is sufficient and satisfactory need not be finally determined during the period of thirty days and that the plaintiff-decree-holder may come in afterwards and challenge its sufficiency and that the mere fact that it is found afterwards that the security was insufficient would not make the deposit of the security within time in any way defective."

The learned advocate for the petitioner on the authority of Penchalu Setti v. Potireddi Sub-bareddi, 1943-2 Mad L. J. 671 : (AIR 1943 Mad 520) (G) argued that the view taken by the Court below was open to objection. In the case cited it was held by a Bench of the Madras High Court that the mere filing of a draft bond was not sufficient compliance with the provisions of Sec. 17 (1) proviso of the Provincial Small Cause Courts Act, in as much as such bond could not have the effect of a security bond until it was duly executed and registered. In the circumstances the security had not been furnished within the time allowed and hence the petition was not maintainable. The learned Advocate, obligingly enough, referred ma to a decision of the same Court reported in Mari-muthu Goundar v. Ponnammal, AIR 1956 Mad 422 (H) in which a contrary view has been held.

That view is that what Sec. 17 Provincial Small Cause Courts Act, requires is that within the period of 30 days security should be placed in the hands of the Court by the applicant of such a nature that if ultimately accepted it should be sufficient to enforce the obligation upon him and make the money assured in its payment or more readily recoverable. Judged by this test, a duly executed unregistered security bond would be sufficient compliance with the law, though not registered but subsequently registered. In coming to that conclusion the learned Judges Govinda Menon and Ramaswami, were of the view that the previous decisions of the Madras High Court had placed too narrow a construction upon the security that is required under Sec. 17 of the said Act and they preferred the Patna view as enunciated in Rajeshwari Prasad Singh v. Brahmanand Lal, AIR 1933 Pat 279 (I). The learned advocate urges me to overlook the latter authority and follow the previous one because I am bound to do so in view of the decision of the Full Bench in Subbarayudu v. The State, (S) AIR 1955 Andhra 87 (J). But I do not look at the matter in that way. What I find is that there are two conflicting decisions of the same High Court and no binding authority of the Andhra High Court has been placed before me to resolve the conflict.

4. In these circumstances, I deem it advisable to refer the case to a Division Bench for the determination of the two questions, which have been raised and mooted before me. I, therefore, direct that the case may be placed before a Division Bench in accordance with law.

5. This petition coming on for hearing yesterday and this day before this Court in pursuance of the order of Honble Mr. Justice Syed Qamar Hasan, dated 30-11-1956 and made herein, the Court delivered the following judgment :

(ORDER OF THE DIVISION BENCH)

6. K. SUBBA RAO, C.J. : - This revision has been referred to a Division Bench by our learned brother Syed Qamar Hasan, J.

7. The facts are not in dispute and they may be briefly stated. The petitioner filed a suit S. C. S. No. 106 of 1953, on the file of the District Munsifs Court, Cuddapah, against the respondent and obtained an ex parte decree. The respondent filed I. A. No 360 of 1953, for setting aside that decree. The learned District Munsif found that the respondent was not aware of the filing of the suit and, in that view, he set aside the ex parte decree subject to the respondent paying a sum of Rs. 15/- as costs to the petitioner as a condition precedent. The petitioner received that money, but preferred a revision questioning the correctness of that order. The respondent took a preliminary objection, namely having received the benefit under the conditional order, could not maintain the revision on the principle of "approbate and reprobate."

8. Under similar circumstances, a Division Bench of the Madras High Court, in 58 Mad L. J. 137 : (AIR 1930 Mad 268) (A) held that the party receiving the costs cannot afterwards object to the order by way of appeal or revision; Venkatasubba Rao J., who delivered the leading judgment, has considered the case-law on the subject and observed at p. 141 (of ML J) : (at p. 270 of AIR) thus :

"What is the principle underlying these decisions? When an order shows plainly that it is intended to take effect in its entirety and that several parts of it depend upon each other a person cannot adopt one part and repudiate another. For instance, if the Court directs that the suit shall be restored on the plaintiff paying the costs of the opposing party, there is no intention to benefit the latter, except on the terms mentioned in the order itself. If the party receives the costs, his act is tantamount to adopting the order. In other words payment of costs is, as it were, consideration for the suit being restored; so that the defendant cannot accept the costs and still object to the order."

This principle has been accepted and followed by the learned Judges of the Madras High Court in subsequent decisions. (See Sreeramulu v. Venkatanarasimham, 1938-2 Mad L. J. 835 : (AIR 1938 Mad 1004) (K); Satyanarayanamurthy v. Sundara Rao, AIR 1938 Mad 603 (L); Naravanaswami Aiyar v. Subramania Pillai, 69 Mad L. J. 673 : ( AIR 1936 Mad 49) ( M) and Ramaswami Chettiar v. Chidambaram Chettiar, 26 Mad L. W. 527 : ( AIR 1927 Mad 1009 (2) (N) ).

9. Learned Counsel for the petitioner, while conceding that there is no conflict either in Madras or in the Andhra Pradesh High Courts on the aforesaid question and that the principle laid down by Venkata Subba Rao, J. has been followed without any dissent, argues that, in view of the latter judgments of the House of Lords, the basis on which Venkatasubba Rao J. sustained the principle disappeared. In support of this contention he relied upon the judgments of the House of Lords in 1937 A. C 473 (B) and 1940 A. C. 412 (C).

Learned Counsel has taken us through the aforesaid two decisions and contends that the doctrine of approbate and reprobate is only a branch of the law of election, that, apart from it, it has no legal basis in England and that the doctrine as a branch of the law of election should be confined only to transactions inter vivos but not to orders made by Courts. While we appreciate the force of the argument, we find that the Supreme Court, as late as 1956, in Nagubai v. Shamarao, (S) AIR 1956 S. C. 593 (O), accepted the same principle and, indeed, cited the same passage from Halsburys Laws of England on the basis of which the Madras view was built. In the circumstances, we do not see any justification to deviate from the current of judicial opinion. It follows that the order of the learned District Munsif is correct.

10. The civil revision petition fails and is dismissed with costs.

Revision petition dismissed.