ANNAPOORANI AMMAL Vs. RAMASWAMY NAICKER

JUDGEMENT

(1.) The question that presented difficulty to the learned Judge of this Court and which obliged them to refer the same to a Full Bench concerns the legal propriety of the plaintiff, who sued 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, on denying him the relief of specific performance. There are two pronouncements, both of Division Bench of this Court; One in Sakku Bai Ammal v. R. Babu Reddiar, (1977)1 Mad LJ 311 and the other in Senniappa Gounder v. V.K. Venkataraman, (1981) 94 Mad LW 591. The earlier Bench expressed the view that when the plaintiff asked for reliefs in the alternative, he plAccs such reliefs on,par with each other and he makes an election even threshold, leaving entrely the grant of the one or the other of the reliefs 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 therefrom and to reprobate the judgment by appealing against it. There are two pronouncements of the Supreme Court; one in Bhau Ram v. Baij Nath Sing, AIR 1961 SC 1327, and the other Ramesh Chandra Chandiok v. Chuni Lal Subharwal, AIR 1971 SC 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 11 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, S.22 of the Act is relevant and it stands extracted as follows:-

(3.) Coming to the pronouncements of the Supreme Court, after going through them, we find practically there is no conflict between the two. In Bhau Ram v. Baij Nath Singh, AIR 1961 SC 1327, it was a case of a suit, instituted by the plaintiff for the endorcement of, the right of pre-emption and the trial Court dismissed the suit. But, on appeal, it was decreed. There was an appeal to the Supreme Court by the defendant and there was a preliminary objection raised by the plaintiff, that the defendant was precluded from proceeding with the appeal on the ground that by withdrawing the pre-emption price he must be deemed to have accepted the decree and that he could not heared to say that the decree was erroneous. In that context, it was observed that unless the party had so conducted himself as to make restitution impossible or inequitable, the principle of approbate and reprobate would not apply. In Ramesh Chandra Chandiok v. Chuni Lal Subharwal, AIR 1971 SC 1238, the same principle found expression in a slightly different language and it was observed that the appellant could not accept satisfaction of the decree of the Trial Court and yet prefer an appeal against that decree.