GOLI AMMIRAJU Vs. GOLI KONDALARAYUDU

JUDGEMENT

(1.) The plaintiff is the appellant. The plaintiff and the defendants are members of a joint Hindu family. A suit was instituted by the plaintiff against the defendants for partition of the family properties and final decree was passed by the District Munsif awarding the plaintiff a certain share in the properties. The plaintiff preferred an appeal against the decree passed by the District Munsif in which he raised two main objections, namely, that there was no proper division of the properties and that necessary provision has not been made in regard to channels and water rights. Subsequent to the passing of the final decree and before the filing of the appeal the plaintiff took possession of the plots allotted to him under the decree. Before the appeal was heard an application was filed by the defendants praying that the Court should dismiss the appeal summarily on the ground that the plaintiff has taken possession of the share allotted to him and that having thus taken the benefit under the decree his appeal should not now be heard. In Banku Chandra Bose V/s. Mariam Begum (1916) 37 I.C. 804 and in Ramaswami Chettiar V/s. Chidambaram Chettiar (1927) 26 L.W. 527 which followed it, it was held in the circumstances of those cases that: a party who has adopted an order of the Court and acted under it cannot, after he has enjoyed a benefit under the order, contend that it is valid for one purpose and invalid for another. He must be considered to have acquiesced in the order and afterwards cannot be allowed to impeach it.

(2.) Acting on the authority of those decisions the learned Sub-Judge accepted the contention of the defendants and dismissed the plaintiff's appeal without hearing it on the merits.

(3.) In this second appeal the plaintiff-appellant contends that the cases relied on by the lower Court are distinguishable and that the principle enunciated in them cannot be applied to the present case. In Banku Chandra Bose V/s. Mariam Begum (1916) 37 I.C. 804 a suit was dismissed for want of prosecution and on the application of the plaintiff was ordered to be restored to its file on the plaintiff's paying to the defendants a sum of money towards their costs of and incidental to the application. The defendants accepted the sum paid by the plaintiff without recording their intention to appeal against the order. It was held that the defendants, after having accepted the money without protest, were precluded from appealing against the order. This case was followed in Ramaswami Chettiar V/s. Chidambaram Chettiar (1927) 26 L.W. 527 where, after referring to it and two English cases, King V/s. Simmonds (1845) 7 Q.B. 289 : 115 E.R. 498 and Tinkler V/s. Hilder (1849) 4 W.H. and G. 187 : 154 E.R. 1176 it was held that when the lower Court allowed an amendment of the written statement on condition of the defendants paying plaintiff Rs. 150 by way of costs and the plaintiff's vakil under protest accepted it he cannot afterwards object that the order was made without jurisdiction. The decision was based upon the long recognized principle that: Where a party accepts costs under a Judge's order which but for the order would not at that time be payable he cannot afterwards object that the order was made without jurisdiction.