KORVATI SUBBAMMA Vs. PINNAPUREDDI SUBBIAH

JUDGEMENT

(1.) This application in revision on behalf of the plaintiff is directed against the order dated 15th March, 1954 of the District Munsif, Cuddappah, 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 Gadde Venkatarayudu v. Anumolu Chinna Ramakrishnayya1. 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. Venkatasubbarao, J., after reviewing a number of Indian and English decisions observed :

(3.) 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 instance 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 appeal ".