Venkatasubba Rao, J. — These three Civil Revision Petitions have been posted and argued together, as they raise a common point of law. When an order consists of two parts embodying directions, one against the other, in favour of a party, can the latter, after taking advantage of that part which confers a benefit on him, object to the other part on the ground that he is not bound by it? This is the point of law which is common to the three cases, although in the application of the principle, each case raises certain different questions. The order under consideration in C. R. P. No. 248 of 1928 being typical, I shall set that out. A suit was dismissed for default and the plaintiff applied for its restoration. The Judge held that there were no sufficient grounds, but restored the suit as a matter of grace (as the judge calls it) on the plaintiff paying the defendant's costs. The defendant, after receiving the costs files the Civil Revision Petition objecting to the order. The question is, is he entitled to be heard? The point is, in my opinion, concluded by authority; but as it is said that our decision will govern several cases in this Court now pending, I shall deal with the question in some detail.

Pearce v. Chaplin(2) is a valuable case on the point. A summons was obtained calling upon the plaintiff to show cause why the judgment signed and execution is sued out should not be set aside for irregularity without costs. The Lord Chief Baron directed that the judgment and execution should be set aside. Then followed an argument whether, as a part of the order, the defendant should be restrained from bringing an action. The plaintiff requested the Court to direct that no action should be brought. The defendant urged, on the contrary, that he suffered damage on account of the improper execution levied and that he should not be barred from bringing an action. On this, the Lord Chief Baron made the following order without embodying any decision as to the irregularity alleged. “I do order that the Judgment signed herein, and the execution issued thereon, be set aside without costs.” The defendant, acting upon the order, obtained back the goods taken in execution. The question arose, is he nevertheless entitled to complain against the order? It may be useful to glance at the contentions raised by the counsel in that case, as they may he said to represent the arguments now urged before us. For the plaintiff it was urged,

“The defendant having obtained and acted upon this order, has made himself a party to it, and cannot now move to rescind it.”

It was asserted on the other side:

“The defendant unavoidably acted on the order to the extent to which he accepted it, but did not thereby waive his expressed dissent from the residue”.

Lord Denman, C.J, the three other members of the Bench concurring, delivered the following judgment:

“I think we must assume on the statements that there was an irregularity. But the Judge set aside the proceedings without costs, and without deciding whether an irregularity had been committed or not. Then we find an order made that no action shall be brought, the defendant's attorney protesting against that restriction. But, notwithstanding his protest, be takes and avails himself of the order. We are then bound on principle to hold that he took it in its whole extent. There is no case which shows that when a party has acted upon such an order, and had the full benefit of it, he shall not be bound by ail its terms.”

This case I have set forth in some detail, as it serves, to illustrate the principle upon which the rule is based. The English Courts have repeatedly given effect to this principle. The other cases on the point do not add to the reasoning contained in this judgment; but they show in what a variety of cases this rule was acted upon.

In Tinkler v. Hilder the plaintiff having obtained judgment, the Judge made an order to stay the proceedings on payment of the costs of the day. These costs were subsequently taxed and paid. It was contended that the plaintiff could not object to the order, after under it, by receiving the costs. This contention was accepted by the Court. It is argued that the order in this case was made by consent; but the report shows clearly that this argument is not correct, although it receives some apparent support from the judgment of Platt B.

Kennard v. Harris is still another instance where the same principle was recognised.

Wilcox v. Odden is also an authority for the same position. The facts closely resemble those in Pearce v. Chaplin(3). The defendant in pursuance of the order, having received the goods from the Sheriff and thus far availed himself of the order it was held that he could not apply to the Court to rescind that part of it which forbade the bringing of an action.

Sparrow v. Reed(4) decides the same point. The case was first tried by the Judge and he ordered a second trial before a jury on the applicant paying the costs of the application to the party opposing it. Held, that whether the judge had power to make such order or not, the opposing party had by accepting such costs precluded himself from afterwards objecting to the order. In the short judgment of Coleridge, J., the point is treated as settled beyond doubt.

In India also this rule has been almost uniformly acted upon. In Hazari Lal v. Ganga Charan(5) the suit was restored on payment of costs. The defendant having accepted the costs, was held precluded from objecting to the order in appeal. In this case, the learned judges very aptly refer the costs granted as compensation awarded to the opposing party. Rupchand Prithi Chand v. Hardayal Mal(6) is a similar case. There an ex parte decree was set aside on payment of costs. The revision petition was rejected on the ground that the plaintiff had accepted the costs. Banku Chandra Bose v. Marium Begum(7) is a decision to the same effect of the Calcutta High Court by a Bench of three judges. A suit dismissed for non-prosecution was restored on payment of the defendant's costs incidental to the application. The latter got his costs taxed and obtained an allocator. Held, that having taken this advantage under the order, he was precluded from appealing against it.

In Ramaswami Chettiar v. Chidambaram Chettiar(8) Jackson, J. followed the same rule. The case related to an order allowing amendment of the written statement on payment of costs.

With this ruling I concur in so far as it is in conformity with English cases on the point. In one respect, it is, in my opinion wrong and to that I shall advert presently.

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. According to Halsbury, this rule is an application of the doctrine that a person may not approbate and reprobate. (13 Hals. Paragraph 508).

In Broom's Legal Maxims, it is treated as an illustration of the maxim that no man shall be permitted to blow hot and cold with reference to the same transaction. (9th Edition Page 118).

In other words, to allow a party, who takes a benefit under such an order, to complain against it, would be to permit a breach of faith. From this statement, it is clear that if a party receives the benefit reserving his right to object to the order, he will not in that case be precluded from attacking it. It is in regard to this that I dissent with respect from the observation of Mr. Justice Jackson in Ramaswami Chettiar v. Chidambaram Chettiar already referred to. That learned judge thinks that it makes no difference that the party accepts the benefit under protest. In this connection, of course, the significance of the expression “under protest” must be clearly borne in mind. As pointed out by Langdale, M. R., these words “have no distinct meaning by themselves and amount to nothing unless explained by the proceedings and circumstances.” [Re Massey cited in Stroud's Jud. Dic. 2nd Edition, Volume III, page 2118].

If for example, the costs are paid into Court and the opposing party draws them out stating that he does so under protest these words would then be meaningless. To such a case, the observation of Mr. Justice Jackson would properly apply. This would be analogous to what happened in Croft v. Lumley. The party receiving the rent there said that he did so under protest; but, in the circumstances, the: addition of the words was idle and meant nothing in fact. As Baron Channel said what the man did, not what he said was the all important matter.

To take another example, if the party liable under the order personally hands over the amount to his opponent, who, while insisting on keeping it, asseres that he receives it under protest, in such a case again, his so-called protest cannot in the least avail him. In each case, it is a question of fact, whether the costs were paid by the one party, and received by the other, in such circumstances as show that the latter's right to object is not waived. This I conceive to be the effect of the reservation referred to in the judgment in Banku Chandra Bose v. Marium Begum already cited.

It is next needless to add that the rule in question does not apply to a case where the various directions in an order or judgment are intended to be distinct and independent of each other. Thus, if a suit is dismissed, but the plaintiff is awarded costs, he is not precluded from impeaching the judgment by receiving the costs. Nor, if the suit is for the recovery 6f say Rs. 200 and a decree is passed for Rs. 50 is the plaintiff disentitled to object, by reason of his having received the amount for which judgment was given. Jogendra Nath v. Khoda Buksha Biswas, is a case of this description. The learned judges, while affirming the principle laid down in decisions such as Pearce v. Chaplin point out that the facts of the case before them do not bring it within those rulings.

Analogous to these are cases where conditional orders are coupled with orders that are executable. An order may run thus;—

“I direct the suit shall be restored on defendant paying all costs of suit incurred up-to-date, fixed at Rs. 150; if this amount is not paid within a week the petition shall stand dismissed with costs, Rs. 20.”

In such a case the fact that the defendant receives the last mentioned sum does not preclude him from impeaching the order.

I think I have stated the principle with sufficient clearness and shall now proceed to consider separately each of the three revision petitions.

C. R. P. No. 248 of 1928. The order in this case is that the suit shall be restored on the plaintiff paying the defendant's costs inclusive of vakil's fee of Rs. 20. The costs were paid by the plaintiff and received by the defendant. It is now alleged, however, that while receiving the sum, the defendant reserved his right to object to the order. This seems very doubtful, but it is unnecessary to decide the point. Granting that the petitioner (defendant) has not precluded himself from filing this petition, I am clearly of the opinion that on the merits the order of the Lower Court must be supported. The learned judge says that sufficient reasons are wanting, but he is prepared to restore the suit. The order is bad on the face of it, but we find on examining the record that there were sufficient reasons. It is discretionary with the High Court to interfere revision and it will not use its powers for the purpose of defeating justice. On the assumption made by the learned judge, his order is wrong, but we find his assumption itself is incorrect. The result is, his order must be supported and the Civil Revision Petition fails and is dismissed but, in the circumstances of the case, without costs.

G. R. P. No. 1024 of 1928.—A petition was filed in the Lower Court under Sect. 47 for releasing certain property from attachment and it was dismissed. The following order was made:—

“I shall set aside the order and restore the petition if the petitioners pay the respondent's costs before the 2nd August, 1928.”

The amount was paid into Court and the opposing party drew it out. Applying the principle I have stated, the Civil Revision Petition is incompetent and is dismissed with costs.

C. R. P. No. 602 of 1928.—In this case an order was made in appeal allowing the plaint to be amended on the plaintiff paying certain costs within a specified date. We find that payment of costs was made under R. 163 of the Civil Rules of Practice and that the defendant received the amount under protest. In effect, what happened was this. The plaintiff tenders the amount; the defendant offers to receive it without prejudice to his right to impeach the order. The plaintiff nevertheless pays the money and the defendant receives it. The latter has thus not precluded himself from filing this petition.

Now, coming to the merits, the petitioner (defend ant) does not seriously complain against the order allowing the amendment. If there was any ambiguity in the plaint, that was removed by the amendment made. But the mistake made by the Subordinate Judge really consists in this. In the suit, there was a distinct issue raised regarding the mortgage (Issue No. 1). That issue was tried by the District Munsif who recorded his finding upon it. The Subordinate Judge ignoring this has remitted the case to the 1st Court for a finding on that issue. He seems to think that the question has not been tried by the Munsif, because the latter has not considered the second issue. This is clearly wrong as the 2nd issue, as is now admitted, is merely a repetition of the first, in different words. In the circumstances the lower Appellate Court is wrong in directing the Munsif to retry an issue already tried.

Though the Civil Revision Petition is in terms directed against the order granting amendment, the petitioner's real grievance is, as I have stated, that the Subordinate Judge's subsequent procedure was wrong. We agree with this contention and direct the Subordinate Judge to dispose of the appeal in the light of our observations. We are not to be understood as laying down in advance, that if while hearing the appeal it appears to him necessary to call for findings on any matters, he is precluded from doing so.

In the circumstances, we make no order as to costs.

Ramesam, J.—I have had the advantage of perusing the judgment of my learned brother with which I entirely agree. I wish to add a few words avoiding repetition of what is stated by him as far as possible.

The true basis of the rule is, not estoppel by conduct, but that a person cannot both approbate and reprobate. If the facts indicate that the person has adopted the order, he cannot object to it afterwards.

The facts may show that receipt of the money is not inconsistent with reservation of the right to question the order by way of appeal or otherwise. The protest, to have the effect of such reservation, must give the opposite party an opportunity to withdraw the offer. If at the time of paying the costs, the party to whom the amount is offered, states that he wishes to appeal and if, therefore, the offerer need not pay him the amount but may deposit it in Court, and if still he offers the amount, the receipt of it does not amount to approbation of the order. It is in this matter that I respectfully dissent from the opinion of Jackson, J. In Croft v. Lumley, the amount was offered as rent. A payer has the right to appropriate a payment for a particular purpose. The payee has then no right to appropriate it to a different purpose. It is under such circumstances that it was observed that what the man did and not what he said was the all important matter. In cases of the kind we are dealing with, there is no question of appropriating the amount for a different purpose and the observation in Croft v. Lumley cannot apply.

In Sarotkumari Dasi v. Amullyadhan Kundu the deposit was made under a compromise decree. The appellant's knowledge and consent were afterwards denied. The appellant having obtained leave to appeal to the Privy Council it is impossible to attribute to her an intention to adopt the compromise decree by offering the deposit as a security, for the offer as security shows her desire to prosecute the appeal and not to adopt the compromise decree. This case cannot help the petitioner.

In Nalinakha Sinha v. Ram Taran Pal, the costs are allowed unconditionally and the payment was not made on condition precedent to the operation of the rest of the order. Nor was there any option to pay the costs. That case illustrates the branch of the rule on the other side of the line.

I agree to the orders proposed by my learned brother.

N.R.R