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Hurrybux Deora v. Johurmull Bhotoria And Anr.
Structured Summary of the Opinion
Factual and Procedural Background
The Plaintiff executed a mortgage of the suit lands to the Defendants in 1911, who were put in possession and empowered to realise rents from tenants. In 1915 the Plaintiff claimed to redeem the mortgage; there was a dispute as to the amount due. The Plaintiff filed his suit for redemption and possession on "31th February 1916" (as stated in the opinion). By an order dated 17 March 1916 the Plaintiff paid Rs. 43,000 to the Defendants and the Defendants returned possession to the Plaintiff.
On 17 May 1922 the matter was referred to an Assistant Referee to take the mortgage account on the basis of wilful default and neglect; after protracted proceedings the Assistant Referee reported that the Defendants were liable to pay the Plaintiff Rs. 88,918. The Defendants filed exceptions; Mr Justice Page allowed some exceptions and disallowed others. On 19 September 1928 a decree was passed in favour of the Plaintiff for Rs. 12,946-4-3 with certain costs. The decree noted that the Registrar held 3½% Government Promissory Notes of face value Rs. 60,000 deposited by the Defendant Sobha Chand Bhutoria under an order dated 25 November 1924, and ordered that the Registrar pay the Plaintiff Rs. 12,946-4-3 and the balance to the Defendants.
The Plaintiff drew the decretal sum of Rs. 12,946-4-3 out of Court and brought the present appeal to establish his right to (a) the balance of the amount found by the Assistant Referee to be due to him and (b) certain costs not awarded by the decree. The Defendant Sobha Chand Bhutoria filed a cross-objection disputing the amount found due by the decree.
Because the disputes related to a voluminous/protracted account and the Defendants wished to raise a preliminary objection to the competency of the appeal, the Court ordered the appeal to be set down for hearing on that preliminary point.
Legal Issues Presented
- Whether the appellant, having taken out of Court the sum awarded to him by the decree, is thereby rendered incompetent to proceed with his appeal (i.e., whether acceptance/withdrawal of the decretal sum precludes challenge to other parts of the decree).
- Whether authorities relied upon by the Defendants (including English and Indian decisions) establish a principle that should bar the appeal in the particular facts of this case.
Arguments of the Parties
Defendants' Arguments
- The Defendants raised a preliminary objection that because the Appellant had taken out of Court the sum of money awarded to him by the decree, he was incompetent to proceed with his appeal.
- The Defendants relied on precedent, including Banku Chandra Bose v. Mariam Begum, Mani Lal Guzrati v. Harendra Lal, Tinkler v. Hilder, and Kenard v. Harris, to support the proposition that acceptance of a benefit under an order may preclude challenging that order.
Appellant's Position
- The Appellant brought the appeal to establish his right to the balance allegedly due under the Assistant Referee's account and to recover certain costs not awarded by the decree. (The opinion records this factual basis for the appeal but does not set out detailed legal arguments submitted on the point.)
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Banku Chandra Bose v. Mariam Begum | That a party who accepted a benefit under an order (which they could not otherwise obtain) is precluded from challenging the validity of that order. | The Court distinguished the facts of this case from Banku Chandra Bose and held the principle did not apply here; relied on comparative reasoning from a later reviewed decision. |
| Mani Lal Guzrati v. Harendra Lal | Payment of costs under protest did not necessarily debar the payee from questioning the order; but if costs were ordered to be paid into Court and voluntarily withdrawn, that might debar challenge. | The Court cited this case to show nuance: acceptance under protest can leave open a challenge, and voluntary withdrawal of money imposed as a term may have different consequences. |
| Tinkler v. Hilder | English authority where acceptance of benefit under an order/pre-condition was held to preclude challenging the order. | The Court treated this and similar English cases as inapplicable to the present decree except where the party accepted a benefit that was a term or condition imposed by the order. |
| Kenard v. Harris | Applied the principle in the context of awards (here mentioned in connection with arbitration and the Workmen's Compensation Act, 1906). | The Court distinguished arbitration/award cases; noted the principle is well established in that class but found it not directly applicable to the present decree. |
| Jogendra Nath v. Khoda Buksh (second appeal No. 2676 of 1920) | A careful review of cases on the subject showing the principle is not universally applicable where the accepted benefit was not a condition on which the party gained the benefit. | The Court adopted the observations of Chatterjea, J. in that decision and agreed the principle relied upon by the Defendants did not apply to this case. |
| Josey v. Vincent | A reported English instance where the principle was applied but Pickford L.J. expressed regret at some unjust results. | The Court acknowledged the regret expressed but noted the principle is established in that line of cases. |
| Harris v. Minister of Munitions | Support for the principle that acceptance of benefit under an award precludes setting aside the award. | The Court cited it as part of the established English line of cases illustrating the general principle (particularly in arbitration/award contexts). |
| Johnson v. Newton Fire Extinguisher Co. | Part of the English authorities supporting the established principle concerning awards and acceptance of benefits thereunder. | Cited to show the principle is well established in the line of English decisions dealing with awards. |
| King v. Simmonds | Illustrates that a party who taxed and received costs under an order could not afterwards apply to set aside that order. | Used as an example of English decisions where acting upon an order and accepting its benefits was held to bind the party; the Court relied on these to distinguish categories of cases. |
| Pearce v. Chaplin | Shows that where an order was acted upon and benefit taken (e.g., the Sheriff relinquishing goods), the party was bound by the whole order. | Used to illustrate the English rule that accepting benefits under an order can preclude challenge; Court distinguished its applicability to the present facts. |
| Hayword v. Duff | Another English case supporting the proposition that acting upon an order binds the party to its terms. | Cited as part of the cluster of English authorities illustrating the principle, which the Court found inapplicable here on the facts. |
| McBullough v. Munn | Irish case cited in discussion of instances where acceptance of an order had consequences for appeal rights. | The Court mentioned it but held such decisions had no application to the present case. |
| McHugh v. McGoldrick | Irish case where remittance for trial unless security was given; refusal to appeal where party had accepted the order was discussed. | The Court observed that even if that decision were correct it did not apply to these facts and so did not bar the appeal here. |
| Auldby v. Pretorius | Referenced as a contrasting authority to the Irish cases mentioned. | Used only as a contrast in the Court's discussion; the opinion contrasts it with the Irish authorities. |
Court's Reasoning and Analysis
The Court addressed the Defendants' preliminary objection by analyzing the nature and scope of the principle relied upon — namely, that a party who accepts the benefit conferred by an order or award is precluded from challenging that order. The Court proceeded in a stepwise analysis:
-
The Court distinguished two broad categories of authority:
- Cases relating to awards (including arbitration and statutory schemes such as under the Workmen's Compensation Act, 1906) where an award is required to deal with the whole matter submitted and acceptance of the award's benefits commonly precludes a challenge to the award.
- Cases concerning interlocutory orders of courts of law where the consequences of accepting a benefit under an order are more nuanced and depend on whether the benefit was a term or condition imposed by the order or was otherwise an unavoidable entitlement.
- The Court examined prior Indian decisions, including a thorough review in the Jogendra Nath case (second appeal No. 2676 of 1920) where Chatterjea and Cuming, JJ. had reviewed the authorities and found the strict principle inapplicable when the accepted sum was not received as a term conditioning the other party's rights.
- Applying these distinctions to the facts, the Court observed that the sum the Plaintiff withdrew (Rs. 12,946-4-3) was an amount awarded by the decree which the Plaintiff would have received in any event, irrespective of the issues contested in the appeal (for example, the disallowance of certain claims or compound interest). The Court contrasted this with cases where receipt of a sum was a term or condition without which particular relief would not have been granted.
- The Court therefore concluded that the authorities relied upon by the Defendants (both English and Indian) did not support the proposition that the Plaintiff's withdrawal of the decretal sum rendered him incompetent to prosecute his appeal as to other parts of the decree. The Court emphasized that the rule that acting on an order always debarred appeal must be read in context and applied with regard to the substance of the order.
- On this basis the Court held the preliminary objection to have no weight and allowed the appeal to proceed to be heard in the usual course. C.C. Ghose, J. concurred.
Holding and Implications
Core Ruling: The Court overruled the preliminary objection and ordered that the appeal proceed in the usual course.
Direct consequences for the parties:
- The Appellant is not barred from prosecuting his appeal despite having drawn the decretal sum of Rs. 12,946-4-3 from Court.
- The appeal will continue for determination of the balance claimed by the Plaintiff under the Assistant Referee's account and for the additional costs sought.
Broader implications: The opinion focused on applying and distinguishing existing authorities and did not purport to lay down a novel rule of law. The Court emphasized that the established principle that accepting benefits can bar challenge must be applied with reference to the substance of each case; it did not announce a new precedent beyond the factual application here.
End of summary. All information above is drawn exclusively from the provided opinion text.
The Judgment of the Court was as follows:—
Rankin, C.J:— In this case the appeal has been set down for hearing on a preliminary point. In 1911 the Plaintiff executed a mortgage of the suit lands to the Defendants whom he put in possession and empowered to realise rents from the tenants. In 1915, the Plaintiff claimed to redeem the mortgage. There was a dispute as to the amount due thereunder and on the 31th February 1916 the Plaintiff filed his suit for redemption of the mortgage and possession of property. It appears that under an order made on the 17th March 1916 the Plaintiff paid to the Defendants Rs. 43,000 and the Defendants made over possession of the property to the Plaintiff. On the 17th May 1922, it was referred to the Assistant Referee to take the mortgage account on the basis of wilful default and neglect and after protracted proceedings before the Assistant Referee, he reported that the Defendants were liable to pay to the Plaintiff Rs. 88,918. The Defendants filed exceptions to this report and ultimately Mr. Justice Page allowed certain of the exceptions and disallowed certain others. On the 19th September 1928 a decree was passed in favour of the Plaintiff for Rs. 12,946-4-3 with certain costs. The decree continued “And it appearing that there is now in the hands of the Registrar of this Court standing to the credit of the account in this suit 3½ per cent. Government Promissory Notes of the face value of Rs. 60,000 deposited by the Defendant Sobha Chand Bhutoria as security under an order made in this suit, dated the 25th November 1924, it is further ordered and decreed that the said Registrar do out of the said sum in his hands pay to the Plaintiff the said sum of Rs. 12,946-4-3 and to the Defendants the balance thereof.” Under this decree the Plaintiff has drawn out of Court Rs. 12,946-4-3 and has brought this 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 costs not awarded to him by the decree. The Defendant Sobha Chand Bhutoria has filed a cross-objection disputing the amount found to be due by the decree.
As the matters in controversy concern a voluminous and protracted account, and as the Defendants desired to take a preliminary objection to the competency of the appeal, this Court ordered the appeal to be set down for hearing on the preliminary point.
The objection taken by the Defendants is that the Appellant having taken out of Court the sum of money awarded to him by the decree, he is incompetent to proceed with his appeal.
They rely upon a decision in this Court in the case of Banku Chandra Bose v. Mariam Begum (1) and upon Mani Lal Guzrati v. Harendra Lal , Tinkler v. Hilder and Kenard v. Harris (4).
I find that in second appeal No. 2676 of 1920 decided in this Court by Chatterjea and Cuming, JJ., in December 1922, [cf. Jogendra Nath v. Khoda Buksh ] the cases on this subject were carefully reviewed. In that case the suit was upon a registered bond for a money debt bearing compound interest at 18 per cent, per annum. The trial Court allowed simple interest at 18 per cent, and directed the decretal amount to be paid in three installments with costs of the suit—the costs to be paid by Jaista 1326 and the principal and interest in two equal instalments thereafter. The District Judge on appeal disallowed compound interest on the ground inter alia that the Plaintiff had accepted Rs. 65-10-0 being the first instalment, namely, the instalment in respect of the costs under the decree. This Court reversed the decision of the District Judge and upon a review of all the cases, held as follows:—
“It will appear that in the English cases as also in the case in Banku Chandra Bose v. Mariam Begum cited above, the Opposite Party having accepted the benefit which he would not have obtained otherwise than under such order, was held to be precluded from challenging the validity of the order.
“In the case before us, there was no such thing. The Plaintiff appealed against the decree in so far as it disallowed compound interest. After the appeal had been filed, against that part of the decree which disallowed compound interest, he accepted the costs (deposited by the Respondent) and which was decreed by the lower Court on the basis of simple interest as to which there was no dispute and which the Plaintiff would have got in any event whether the appeal succeeded or failed. In these circumstances, the principle of the cases referred to above does not apply to the present case.”
In my opinion, the principle of the cases relied upon by the Defendants does not apply to the case before us and I agree in the observations that were made by Chatterjea, J., in the unreported case which I have cited.
To deal with the English cases first, we must distinguish cases which have reference to awards in arbitration. Kenard v. Harris is a case of this type and in England under the Workmen's Compensation Act, 1906, the principle contended for by the Plaintiffs has been applied to awards made by County Court Judges sitting as arbitrators under the Act. It is true that the principle appears to have worked some injustice and its results to have been regretted by Pickford. L.J, in the case of Josey v. Vincent (6), but the principle is well established [see Harris v. Minister of Munitions (7) and Johnson v. Newton Fire Extinguisher Co. (8)]. An award is bad unless it deals with the whole matter submitted and primà facie cannot be set aside in part only. A person who accepts costs payable under an award or any other sum of money given to him by an award is held to be precluded from asking the Court to set aside the award.
If, however, we put on one side cases of this character, we find a series of cases which have reference to interlocutory orders of Courts of law. In Banku Chandra Bose's case an order was made setting aside the dismissal of a suit for non-prosecution and giving to the Defendants certain costs of and incidental to the Plaintiff's application. The Defendants had their bill taxed and obtained an allocator for the amount. They also received under the order the sum of Rs. 250 on account of their costs. In that case the Defendants had no right to the costs except under the order and the Court purported to follow the principle of Tinkler v. Hilder . In the previous case, Mani Lal Guzrati v. Harendra Lal the Plaintiff was given leave to amend his plaint upon payment of Rs. 150 as costs to the Defendants. The costs were paid at once and were received by the Defendants under protest. The Defendants on appeal contended that the Subordinate Judge ought not to have allowed the amendment. This Court held that as the Defendants had no option but to accept the payment of the costs and did so under protest, they had not debarred themselves from questioning the order, but it was said that if the Judge had directed the costs to be paid into Court to the credit of the Defendants and they had voluntarily withdrawn the sum deposited they might have been debarred from questioning the validity of the order. It is clear that in this case the payment of the sum of Rs. 150 was really a term or condition of the liberty given to amend the plaint.
Coming now to the English cases, Tinkler v. Hilder was a case in which the Judge on summons made an order to stay an action for trespass on payment of the costs of the day and of the execution of a certain writ of enquiry. These costs had been taxed and paid. On a motion to rescind the order, it was contended that the Plaintiff could not now question the order after having adopted it and acted under it by accepting the costs. King v. Simmonds (9) and Pearce v. Chaplin (10) were cited. In reply it was argued that in those cases the costs were given by the order and could not otherwise have been obtained whereas in the present case they would have followed the judgment Parke B. replied, “you have obtained them more speedily by means of the order which gives you the advantage. You have therefore received the benefit under the order and cannot now say it is valid for one purpose and invalid for another.” In King v. Simmonds the Judge having ordered on summons by the Plaintiffs that the Plaintiffs should be at liberty to amend the record and also that they should pay the Defendant his costs occasioned by such amendment, it was held that the Defendant could not, after taxing and receiving his costs, apply to pet aside the order. In Pearce v. Chaplin the judgment and execution were set aside on summons and it was ordered that no action should be brought. The Sheriff who had taken the Defendant's goods relinquished them on being served with the Judge's order. The Defendant objected to that part of the order which precluded him from bringing an action. It was held that the order of the learned Judge was not shown to proceed upon the basis of irregularity in obtaining the judgment and that the order did not appear to have been made ex debito justitix, but should be construed to mean that the Judge was not prepared to make the order unless the Defendant agreed to bring no action. Lord Denham, C.J, said “There is no case which shows that when a party has acted upon such an order and has availed himself of the benefit under it, he is not bound by all its terms.” A similar case was Hayword v. Duff (11).
It appears to me that the English cases are clearly inapplicable except upon the basis that the Defendant is seeking to challenge an order after accepting the benefit of a term or condition imposed upon the Opposite Party at whose instance the order was made. So far as the final decree in a suit is concerned, there is no reason for saying that the Plaintiff 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. The Plaintiff in the present case was not awarded the sum which he has drawn out of Court as a term upon which the Defendants were considered to be entitled to the dismissal of part of his claim in the Irish cases of McBullough v. Munn (12) and McHugh v. McGoldrick (13), another principle may be discerned. The former was a very clear case, and in the latter a suit in the King's Bench Division had been remitted for trial before the recorder unless the Plaintiff within ten days gave security for costs to the satisfaction of a master. The Plaintiff applied to a master to fix the amount of the security and an order was made fixing it at £100. The Plaintiff then appealed against the order remitting the action. It was held that the Plaintiff had accepted and adopted the order and could not appeal from it. Whether that decision was right or wrong, it has no application in my opinion to such a case as the present. There, if the appeal succeeded the proceedings before the master would have become idle and the course adopted by the Plaintiff was at least inconsistent and would have made the Court's action inconsistent [Contrast Auldby v. Pretorius (14)]. I do not accept as a sound proposition that acting in any way on any order necessarily debars a party from appealing against the order on any point. In my opinion there is no such rule and the language used in the decided cases must be taken with reference to the substance of the matter before the Court.
For these reasons it does not appeal to me that the preliminary objection has any weight and the appeal must therefore proceed in the usual course.
C.C Ghose, J.:— I agree.
Messrs Dutt & Sen, Solicitors for the Appellant.
Mr. M.N Dutt, Solicitor for the Respondents.
P.C
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