BONAGIRI SREERAMULU Vs. KARUMURI VENKATANARASIMHAM

JUDGEMENT

(1.) This is an appeal from the order of the Subordinate Judge of Narsapur in Appeal No. 27 of 1936. The appellant was the second judgment-debtor in O.S. No. 247 of 1924 on the file of the District Munsiff of Narsapur. In that suit the first respondent in this appeal got a decree for money against a father and three sons. Before judgment on the 16 October, 1924, the joint family property belonging to the defendants in the suit had been attached. After the attachment a partition suit was filed by the sons against their father and the matter is also further complicated by the fact that after the attachment an insolvency petition was brought against the father and in that petition the father was adjudicated. The Official Receiver sold the father's one-fourth share in the joint family property and proposed to sell the shares of the three sons. The first respondent the decree- holder in O.S. No. 247 of 1924 objected to the sale of the three-fourths share belonging to the sons but his objection preferred to the Official Receiver was dismissed for default. The sale was held by the Official Receiver and the first respondent took part in the bidding. The first respondent subsequently filed O.P. No. 19 of 1928 to have the sale of the sons three-fourths share set aside but he allowed this petition to be dismissed for default. The Official Receiver then distributed the proceeds of the sale to the creditors in Insolvency of whom the first respondent was one. Subsequently the purchaser at the sale held by the Official Receiver sued the sons for possession in O.S. No. 36 of 1931 (Sub-Court, Narasapur) but his suit was dismissed on the ground that the sale of the sons shares by the Official Receiver was void. The vendee preferred an appeal but the appeal was not pressed because he and the three sons entered into a compromise by which the vendee paid the sons Rs. 800 and the sons executed in his favour a deed of release or relinquishment undertaking not to dispute his rights in future. This deed was executed on the 22nd September, 1933. In 1934, the first respondent presented the execution petition which has given rise to this appeal. He sought to bring to sale the three-fourths share in the joint family property belonging to the three sons. In 1935 the District Munsiff of Narasapur ordered execution to proceed. The second judgment-debtor (present appellant) appealed to the Subordinate Judge of Narasapur and in A.S. No. 31 of 1935 the order for execution was set aside and the execution petition remanded to the Court of the District Munsiff for fresh disposal. The District Munsiff was ordered to consider the question of the validity of sale of the three-fourths share belonging to the sons. Thereupon another District Munsiff considered the question afresh and although he held that the sale of the three-fourths share by the Official Receiver was certainly illegal and invalid, he dismissed the application for execution on the ground that the decree-holder was not entitled to proceed in execution against the same property which had been sold by the Official Receiver since the decree-holder had taken his share of the dividend out of the sale proceeds. On appeal the present learned Subordinate Judge of Narasapur reversed the decision of the District Munsiff and held that the decree-holder is entitled to proceed against the three- fourths share. The learned Subordinate Judge therefore sent back the execution petition for further proceedings in execution. The second judgment-debtor has preferred this appeal.

(2.) The appellant's position is simple ; he contends that the decree-holder approved of the sale held by the Official Receiver after it was held and that he cannot now be allowed to say that the Official Receiver's sale was void. The position of the 1 respondent decree-holder is equally simple. He says that the sale held by the Official Receiver was undoubtedly void so far as the three-fourths share belonging to the sons is concerned and that nobody can prevent him from alleging the invalidity of that sale and nobody can prevent him from proceeding against the property which is still the property of the 2nd, 3 and 4 judgment- debtors in his suit. The law in my opinion is sufficiently clear that a party who seeks the assistance of the Court is not entitled to approbate and reprobate or blow hot and cold, as it is sometimes put. The principle is clearly stated in Verschures Creameries V/s. Hull and Netherlands Steamship Co. (1921) 2 K.B. 608, Scrutton, L.J., puts it in this way: A plaintiff is not permitted to approbate and reprobate. The phrase is apparently borrowed from the Scotch law, where it is used to express the principle embodied in our doctrine of election, namely, that no party can accept and reject the same instrument. The doctrine of election is not however confined to instruments. A person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage. That is to approbate and reprobate the transaction.

(3.) The principle has been followed in this Court vide the case of Ramaswami Chettiar V/s. Chidambaram Chettiar (1927) 26 L.W. 527 and of Venkatarayudu v. Chinna Ramakrishnayya (1929) 58 MJ.L.J. 137. Those are cases of orders passed by Courts involving the payment of costs to the successful party by the unsuccessful party. It was held that if the successful party received - the costs ordered to be paid by the unsuccessful party, he could not afterwards come to Court and say that the order itself was passed without jurisdiction. In Narayanaswami Aiyar V/s. Subramania Pillai , Cornish, J., drew a distinction which with all respect I am unable to appreciate. Cornish, J., held that an order setting aside an ex parte decree after the expiry of the period of limitation was without jurisdiction and that even if the receipt of Rs. 10 in the shape of costs by the plaintiff's vakil could be regarded as an adoption of the order such an adoption of an order made without jurisdiction could not have the effect of making that order one which the Court was competent to pass. With all respect I think the learned Judge did not appreciate the point of the decision in Venkatarayudu V/s. Chinna Ramakrishnayya (1929) 58 M.L.J. 137. It is of course obvious that acquiescence in an order passed by a Court will not render the order valid if it is an order passed without jurisdiction but the principle followed in Venkatarayudu V/s. Chinna Ramakrishnayya (1929) 58 M.L.J. 137 is that a person who has chosen to adopt an order cannot subsequently be allowed to object to it. As Ramesam, J., puts it, if the facts indicate that the person has adopted the order, he cannot object to it afterwards. The question is really one of fact whether there has been approbation or not. If there has been approbation, reprobation is not permitted.