PUVVADA SATYANARAYANAMURTHY Vs. GADEPALLI SUNDARA RAO

JUDGEMENT

(1.) This is a petition for revision from the order of the District Judge of Vizagapatam reversing that of the District Munsif and setting aside an ex parte decree passed in favour of the petitioner. It was admitted that .the defendant-respondent was not served personally but it was contended that he had knowledge of the suit and there were no sufficient grounds for his absence. The District Judge did not agree with the contention, and holding that there were sufficient grounds for the defendant's nonappearance, he set the decree aside but as he found the respondent to have been guilty of laches he awarded Rs. 25 to the petitioner to compensate him for the waste of time, money and energy caused to him. These costs were paid at once and received by the petitioner's pleader apparently before the District Judge as a reference to this payment is made in his order dated 24 September 1936. The respondent has raised a preliminary objection that inasmuch as the costs awarded by the District Judge were accepted by the petitioner's pleader without any protest, the petitioner is not entitled to attack the order on revision. The principle underlying this objection has been discussed in a number of cases, both English and Indian, and is based not as stated in some of the cases on equitable estoppel, but falls under the well known rule that a party cannot be allowed both to approbate and reprobate. The question having been fully examined in Banku Chandra v. Marium Begum (1917) 4 A.I.R. Cal 546, Kamaswami Chettiar V/s. Chidambaram Chettiar and Vcnkatarayadu V/s. Ramakrishnayya (1930) 17 A.I.R. Mad 268 it is hardly necessary for me to discuss it again. Suffice it to say that the conclusion arrived at by the learned Judges in these cases was that if a party had adopted an order of the Court and acted under it, he could not, after he had enjoyed a benefit under the order, contend that it was valid for one purpose and invalid for another and that he must in the circumstances be considered to have acquiesced in the order passed by the Court.

(2.) In order to apply the principle settled by these authorities, it has to be ascertained whether as contended on behalf of the respondent, the costs were received by the plaintiff's pleader Under protest or whether he should be deemed to have acquiesced in the order passed by the learned District Judge. It is true that in the counter affidavit by the pleader filed in this Court it is stated that when receiving payment he had made it clear that the money was being received by him under protest but he has guarded himself by stating that he could not "recollect now and quote the exact language used" by him at the time. On the contrary there is a clear statement in the affidavit filed on behalf of the respondent's pleader that the money was received in Court by Mr. Vcrikataratnam, vakil for the respondent (in the Court of the District Judge) in Order M.A. No. 10 of 1936 and the money was received in Court without any representation to the Court that it was received Under protest.

(3.) In view of the fact "that the learned District Judge does not refer to the protest alleged to have been made by Mr. Venkataratnam, pleader, in his order under revision, which as stated above adverts to the fact of payment made by the appellant in his Court, and that there is no mention of any protest made on behalf of the plaintiff's pleader in the receipt granted by him to the defendant, which has been produced by the latter in this Court and admitted by the plaintiff's counsel appearing before me, I hold that the payment was received by the plaintiff's pleader without any protest. Had I not arrived at this conclusion, it might have been necessary for me to consider the effect of protest, even if made, particularly when it was open to the plaintiff or his pleader to allow the defendant to deposit the money in Court and note receive it himself. But in the circumstances of this case, it appears to be unnecessary. It has been however contended on behalf of the plaintiff-petitioner that he-should not be held to be debarred from, filing this revision: (a) as the District. Judge acted without jurisdiction in setting, aside the ex parte decree; and (b) as his pleader was not authorized to compromise or waive his right to have the order revised.