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TMI Blog1961 (3) TMI 98X X X X Extracts X X X X X X X X Extracts X X X X ..... to the grant. of special leave to appeal, to him he withdrew the price of pre-emption which was deposited by the respondent No. 1 in the court below. He contends that by withdrawing the pre-emption price the appellant must be deemed to have accepted the decree which alone entitled him to the amount and that, therefore, he cannot be heard to say that the decree is erroneous. In short, Mr. Chatterjee relies upon the doctrine that a person cannot be allowed to approbate and reprobate. In support of his contention, learned counsel has relied upon the well-known case of Tinkler v. Hilder ([1949] 4 Ex. 187: 154 E.R. 1176.) and other cases which follow that decision or which proceed on the same reason as that in Tinkler's case (1). Those decisons are: Banku Chandra Bose v. Marium Begum ((1915] 21 C.W.N. 232.); Ramendramohan Tagore v. Keshabchandra Chanda ([1934] I.L.R. 61 Cal. 433.); Mani Ram v. Beharidas (A.I.R. 1955 Raj. 145.); S. K. Veeraswami Pillai v. Kalyanasundaram Mudaliar & Ors. (A.I.R. 1927 Mad. 1009.); Venkatarayudu v. Chinna (A.I.R. 1930 Mad. 268.) and Pearce v. Chaplin ([1846] 9 Q.B. 802: 115 E. R. 1483.). The two English decisions just referred to and some of the Indian ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emption decree becomes effective but tile price of pre-emption cannot be characterised as a benefit under the decree. It is only in the nature of compensation to the vendee for the loss of his property. For this reason the principle of the aforesaid decision would not apply to such a decree. A question similar to the one before us had arisen in the Punjab in several cases and in particular in the judgment of Lal Chand, J., in Sundara Das v. Dhanpat Rai ((1907] P. R. No. 16.). What the court held there is that the right of appeal is not forfeited by the vendee merely because he has withdrawn the money deposited by the preemptor in whose favour a decree for pre-emption has been passed. No reference is made by the learned judge to the decisions in Tinkler's case ((1849) 4 Ex. 187: 154 E.R. 1176.) and in Pearce's, case ((1846) 9 Q.B. 802: 115 E.R. 1483.) and, therefore, this decision and other similar decisions are of little assistance in considering the "argument advanced by Mr. Chatterjee. It seems to us however, that in the absence of some statutory provision or of a well-recognised principle of equity, no one can be deprived of his legal rights including a statutory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsidered is whether the party appealing has so conducted himself as to make restitution impossible or inequitable. Thus, according to the House of Lords it is to cases in which a party has so conducted himself as to make restitution impossible or inequitable that the principle on which the decision in Tinkler's case ((1849) 4 Ex- 187; 154 E.R. 1176.), is. based, may apply. Referring to this case and three other similar cases Lord Atkin observed: "In any case they form very flimsy foundation for such a wide- reaching principle applicable to all appeals Its was asserted in this case: and if they did lead to that result should not be followed."(pp. 428-429). ([1940] A.C. 412.) The Lissenden case has thus in clear terms indicated what the limitations of the Scotch doctrine are. If, therefore, what was laid down in this case is the common law of England according to its highest judicial tribunal, it is only that law which the courts in this country may apply on the principles of natural justice and not what was supposed to be the common law in certain earlier decisions. It seems to us that a statutory right of appeal cannot be presumed to have come to an end because the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the period of grace was four months. In view of Or. XX, r. 14, of the Code of Civil Procedure, the decree, in spite of its informality, must be understood as providing that upon the respondent paying the amount found payable as purchase money into court within the time fixed, the appellant would deliver possession of the property to him and his title to it would be deemed to have accrued from the date of the payment into court and that, in default of such payment the suit would stand dismissed with costs. Now, there is not the slightest doubt that in with. drawing the money from court the appellant had acted entirely on his free choice; he had in no way been compelled to do so, nor been induced thereto by any act of the respondent. The respondent had done nothing to put the decree in execution and obtain possession of the property from the appellant. The appellant need not have withdrawn the money if he so liked and that would not in the least have prejudiced his interest. He has all along been in possession of the property since he purchased it on June 7, 1950 and he has been in enjoymeint of the money also sine( he withdrew it from court on November 14, 1953. It seems to me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appealing from that judgment. This, it will be noticed, was not a case where an order was considered to have been adopted because of receipt of costs given by it but because of the receipt of the sum of money which was claimed and which was given by the award. Scrutton, L. J., observed, (p. 358) "It startles me to hear it argued that a person can say the judgment is wrong and at the same time accept payment under the judgment as being right". I will conclude the reference to the English authorities by reading what Lord Russel of Killowen said in Evans v. Bartlam ([1937] A.C. 473, 483.(), "a man having accepted a benefit given him by a judgment cannot allege the invalidity of the judgment which conferred the benefit". Of the cases on the point in our country I may refer to Manilal Guzrati v. Harendra Lal ((1910) 12 C.L.J. 556.), Banku Chandra Bose v. Marium Begum ((1916) 21 C.W.N. 232.), Humrybux Deora v. Johurmull Bhotoria ((1929) 33 C.W N. 711.) and Venkatarayudu v. Chinna ((1930) 58 M.L.J. 137). Hurrybux Deora's case (4) was an appeal from a decree in a suit for the redemption of a mortgage. The plaintiff had accepted the amount found by the decree passe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ((1824) 2 B. & C. 80; 107 E.R. 580.) had any application to the facts of the case before him, for, there no part of the judgment was sought to be challenged by the appeal, excepting perhaps an independent part which by implication rejected the appellant's claim to a larger sum. In Venkatarayudu's case ((1930) 58 M.L.J. 137-), Venkatasubba Rao, J., after discussing various cases, to some of which I have referred, observed, (p. 141) "What is the principle underlying these decisions? When an order shows plainly that it is intended to take effect in its entirety and that several parts of it depend upon each other, a person cannot adopt one part and repudiate another". It seems to me beyond doubt that the principle of these cases is applicable to the facts of the present appeal. Here we have a decree which is one and indivisible. The effect of it is that upon the respondent paying the money into court he would be entitled to the property and to obtain possession of it and the appellant would be entitled to withdraw the money. The appellant has no right to the money whatsoever independent of the decree; he had no right to compel the respondent to purchase the property ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... drew the purchase money paid into court by the plaintiff under the decree of the trial Court. The Chief Court held that this (lid not preclude the defendant from proceeding with the appeal before it. The facts of that case were substantially different from those before us. It may be said that the defendant having been compelled to part with the property, was justified in withdrawing of the money from the court and that a withdrawal in such circumstances did not amount to an adoption of the decree. That cannot be said in the present case. Whether on the facts, Sunder Das's case (2) was rightly decided or not, is not a matter on which I feel called upon to express any opinion. If however that case intended to lay down a principle which would warrant the appellant on the facts of the case in band in proceeding_ with this appeal, I am unable to agree with it. It would then be in conflict with all the authorities on the point and none of these was noticed in the judgment, in that case. I do not think that Sunder Das's case (1907 P.R. No 16.) is of sufficient authority to warrant a departure from the principle uniformly followed by the courts. It is necessary, however, before I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions of the House of Lords on the doctrine against "approbating and reprobating" affect the question before us. All the learned Judges who delivered opinions in the case, including Lord Atkin, who expressed himself with some reservation, accepted tile position that a litigant may lose his right of appeal by reason of his conduct after the judgment or award for, by such conduct he may be estopped from appealing or may be considered in equity or at law as having released his right of appeal: see p. 420,429, 430 and 434. Lissenden's case (1) does not, therefore, in my view throw any doubt on the principle that a litigant may be precluded from proceeding with an appeal if that would be inconsistent with his previous conduct in regard to the decree challenged by the appeal. It seems to me that the courts in England have taken the same view of Lissenden's case ([1940] A.C. 412.). In Baxter v. Eckersley ([1950] 1 K. B. 480.) the Court of Appeal expressly approved of the principle laid down in Dexter's case([1926] 1 K.B. 348.). In Banque Des Marchands De Moscou v. Kindersley ([1951] 1 Ch. 112.) Evershed, M. R., referring to the phrases "approbating and reprobati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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