GADDE VENKATARAYUDU Vs. ANUMOLU CHINNA RAMAKRISHNAYYA

JUDGEMENT

(1.) These three Civil Revision Petitions have been posted and argued together, as they raise a common point of law. When an order consists of two parts embodying directions, one against, and the other, in favour of a party, can the latter, after taking advantage of that part which confers a benefit on him, object to the other part on the ground that he is not bound by it? This is the point of law which is common to the three cases, although, in the application of the principle, each case raises certain different questions. The order under consideration in C.R.P. No. 248 of 1928 being typical, I shall set that out. A suit was dismissed for default and the plaintiff applied for its restoration. The Judge held that there were no sufficient grounds, but restored the suit as a matter of grace (as the Judge calls it) on the plaintiff paying the defendant's costs. The defendant, after receiving the costs, files the Civil Revision Petition objecting to the order. The question is, is he entitled to be heard? The point is, in my opinion, concluded by authority; but as it is said that our decision will govern several Cases in this Court now pending, I shall deal with the question in some detail.

(2.) Pearce V/s. Chaplin (1846) 9 Q.B. 802 : 115 E.R. 1483 is a valuable case on the point. A summons was obtained, calling upon the plaintiff to show cause why the judgment signed and execution sued out, "should not be set aside for irregularity with costs." The Lord Chief Baron directed that the judgment and execution should be set aside. Then followed an argument, whether, as a part of the order, the defendant should be restrained from bringing an action. The plaintiff requested the Court to direct that no action should be brought. The defendant urged, on the contrary, that he suffered damage on account of the ,improper execution levied and that he should not be barred from bringing an action. On this, the Lord Chief Baron made the following order without embodying any decision as to the irregularity alleged: I do order that the judgment signed herein, and the execution issued thereon, be set aside without costs.

(3.) The defendant, acting upon the order, obtained back the goods taken in execution. The question arose, is he nevertheless entitled to complain against the order? It may be useful to glance at the contentions raised by the counsel in that case, as they may be said to represent the arguments now urged before us. For the plaintiff it was urged: The defendant, having obtained and acted upon this order, has made himself a party to it, and cannot now move to rescind it.