P KATHAVAN SERVAI Vs. RAHIMA BEEVI

JUDGEMENT

(1.) THE question that presented difficulty to the learned Judges of this Court and which obliged them to refer the same to a Full Bench concerns the legal propriety of the plaintiff, who used for specific performance of a contract of a sale and who also, in the same suit, asked, in the alternative, for the relief of refund of earnest money or advance money, paid under the contract of sale preferring an appeal against the judgment and decree of the first Court, which granted him only the relief of return of the earnest money or advance money, or denying him the relief of specific performance. THEre are two pronouncement, both the Division Bench of this Court, one in Sakku Bai Ammal v. R.Babu Reddiar and others, (1977)1 M.LJ. 311 and the other in Senniappa Gounder v. V.K.Venkataraman and others, (1981) 94 L.W. 591. THE earlier Bench expressed the view that when the plaintiff asked for relief�s in the alternative, he places such relief on per with each other and he makes an election even at the threshold, leaving entirely the grant of the one or the other of the relief�s to the court and after the grant of one such alternative relief, he is not an aggrieved person, who could carry the matter to the higher Court for the grant of that relief, which was not given by the first Court. THE latter Division Bench, however, opined that the proper test to be applied is whether there is any inconsistent intention or conduct on the part of the appellant to approbate the judgment, appealed against, by taking a benefit there from and to reprobate the judgment by appealing against it. THEre are two pronouncements of the Supreme Court one in Bhau Ram v. Bai] Nath Singh and others, A.I.R. 1961 S.C. 1327 (1962)1 S.C.R. 358 and the other Ramesh Chandra Chandick and another v. Chuni Lai Subbarwal by his Legal Representatives and others, (1971)2 S.C.J. 619: 1971 Crl.L.J.1073:A.L.R. 1971 S.C. 1238. We will presently advert to these pronouncements. THEre seems to be an opinion and understanding about these pronouncements that they do not lend support to each other.

(2.) THE law relating to specific performance of contracts stands codified. Chapter II of the Specific Relief Act 47 of 1963, hereinafter referred to as the Act, sets down the provisions governing specific performance of contracts. For our purpose, section 22 of the Act is relevant and it stands extracted as follows:

(3.) HENCE, we answer the question, referred to us, as we have done above. Any observation found in Sakkur Bai Ammal v. R.Babu Reddiar and others, (1977)1 M.LJ. 311, running contrary to what we have expressed above, stands overruled. The references are answered accordingly. The appeals will have to go before the learned Judge or Judges, who should hear it or them on merits. We make no order as to costs.