Bhau Ram vs B. Baijnath Singh And Others
Rewritten Version Notice: This is a rewritten version of the original judgment.
Court: Supreme Court of India
Case Number: Civil Appeal No. 270 of 1955
Decision Date: 16 March 1961
Coram: J.R. Mudholkar, P.B. Gajendragadkar, A.K. Sarkar, K.N. Wanchoo, K. Subba Rao
In the matter of Bhau Ram versus B. Baijnath Singh and others, the Supreme Court delivered its judgment on 16 March 1961. The decision was authored by Justice J.R. Mudholkar, with Justices P.B. Gajendragadkar, A.K. Sarkar and K.N. Wanchoo forming the bench. The case is reported as 1961 AIR 1327 and 1962 SCR (1) 358, and is later cited in R 1965 SC 241, D 1967 SC 940, RF 1972 SC 2162, and F 1983 SC 786. The principal issue concerned the enforceability of a decree issued in a pre‑emption suit filed by the respondent, B. Baijnath Singh, against the appellant, Bhau Ram, under the Rewa State Pre‑emption Act, 1949. The trial court had dismissed the suit, but on appeal a decree dated 24 March 1952 was rendered, stipulating that if the respondent paid the purchase price into court within four months, his title to the property would be deemed to have accrued from the date of that payment. The appellant sought special leave to appeal, which was granted on 20 May 1953, limited to the constitutional question of whether the Rewa State Pre‑emption Act, 1949, unconstitutionally restricted the right to acquire property guaranteed by Article 19(1)(f) of the Constitution. While the appeal was pending, the respondent deposited the required pre‑emption price within the time fixed by the decree, and on 14 November 1953 the appellant withdrew that sum from the court. The respondent then raised a preliminary objection, contending that by withdrawing the money the appellant had accepted the decree and therefore could no longer challenge its correctness, invoking the doctrine that a party may not both approbate and reprobate an order. In a dissenting opinion, Justice A.K. Sarkar held that the appellant’s act of withdrawing the pre‑emption price did not constitute an adoption of the decree he was contesting, and that, absent a specific statutory provision or a well‑recognised equitable principle, the appellant could not be deprived of his statutory right of appeal. Accordingly, the appeal was not barred, and the principle that a person who enjoys a benefit under an order cannot repudiate the adverse part of that order applies only where the benefit is distinct from the subject matter of the claim.
In this case the merits of the claim were examined. A vendee who is sued in a pre‑emption action and against whom a decree is passed is entitled to receive the pre‑emption price before the decree becomes operative. However, that price is not a benefit conferred by the decree; it is merely compensation for the loss of the vendee’s property. The Court referred to several authorities on this point, including Tinkler v Hilder (1849) 4 Ex 187, VerschuYes Creameries v Hull and Netherlands Steamship Co [1921] 2 KB 608, Lissenden v C A V Bosch Ltd [1940] AC 412, Venkatarayudu v Chinna AIR 1930 Mad 268 and Sundra Das v Dhanpat Rai 1907 PR No 16.
According to Justice Sarkar, the decree was a single, indivisible instrument and the appellant possessed no right to the money independently of that decree. He could draw the money only because the decree had been validly passed. By withdrawing the money, the appellant had, in effect, accepted the correctness of the decree and could not later contend that the decree was erroneous. Allowing the appeal to proceed would create an inconsistency in the appellant’s conduct, and therefore the appellant could not be permitted to continue with the appeal.
The Court noted that the case law reviewed supported this view. The judgment was delivered in the Civil Appellate Jurisdiction for Civil Appeal No 270 of 1955, which arose by special leave from the judgment and decree dated 24 March 1952 of the Judicial Commissioner’s Court, Vindhya Pradesh, in First Appeal No 16 of 1952. Counsel for the appellant comprised L K Jha, A D Mathur and R Patnaik. Counsel for respondent No 1 were N C Chatterjee and D N Mukherjee. The judgment was pronounced on 16 March 1961 by Justices P B Gajendragadkar, K Subba Rao, K N Wanchoo and J R Mudholkar, with Justice Mudholkar delivering the opinion of the Court, while Justice A K Sarkar gave a separate judgment.
The principal issue before the Court was whether the Rewa State Pre‑emption Act, 1949, was unconstitutional because it imposed an unreasonable restriction on the right to acquire property under clause 1 (f) of Article 19 of the Constitution. Before addressing that substantive question, the Court first had to resolve the preliminary objection raised by respondent No 1’s counsel, N C Chatterjee. The objection asserted that the appellant was barred from pursuing the appeal because, after special leave was granted, he had withdrawn the pre‑emption price that respondent No 1 had deposited in the lower court. The contention was that by withdrawing the price, the appellant must be deemed to have accepted the decree that entitled him to the amount, and consequently he could not later argue that the decree was erroneous. In essence, the counsel relied on the doctrine that a person cannot both approbate and reprobate, seeking to prevent the appellant from challenging the decree after having accepted its benefits.
Learned counsel relied on the well‑known English decision in Tinkler v. Hilder (1) and on a series of authorities that follow that decision or are based on the same reasoning as applied in Tinkler’s case. The authorities cited by counsel were Banku Chandra Bose v. Marium Begum (1a); Ramendramohan Tagore v. Keshabchandra Chanda (2); Mani Ram v. Beharidas (3); S. K. Veeraswami Pillai v. Kalyanasundaram Mudaliar & Ors. (4); Venkatarayudu v. Chinna (5); and Pearce v. Chaplin (6). The two English decisions just mentioned together with some of the Indian decisions were examined in the earlier judgment of Venkatarayudu v. Chinna (5). While discussing those cases, Justice Venkatasubba Rao observed the following principle: when an order plainly indicates that it is intended to operate in its entirety and when several parts of the order depend upon each other, a party cannot accept one part of the order and reject another. He illustrated this by stating that if a court directs that a suit shall be restored on the condition that the plaintiff pays the costs of the opposing party, there is no intention to confer any benefit on the plaintiff except on the terms expressly set out in the order. If the plaintiff receives the costs, his conduct amounts to an adoption of the order. Justice Venkatasubba Rao then referred to Halsbury’s Laws of England, which characterises the rule as an application of the doctrine that “a person may not approbate and reprobate” (13 Halsbury, paragraph 508). In other words, to permit a party who has taken a benefit under such an order to later complain about the same order would amount to a breach of faith. The other authorities cited by counsel reached similar conclusions. However, it is necessary to note that in all those cases the benefit conferred by the order was distinct from the merits of the substantive claim that was before the court.
The question before us is whether the appellant, by withdrawing the pre‑emption price after it had been deposited by the plaintiff‑respondent No. 1, can be said to have adopted the decree against which he had already filed an appeal. The appellant did not attempt to enforce the decree, and the decree itself did not give the appellant any right to seek execution. The decree merely granted the plaintiff‑respondent No. 1 the right to deposit the pre‑emption price and, upon doing so, to be substituted in the sale deed in place of the vendee. Consequently, the appellant’s act of withdrawing the pre‑emption price after it had been deposited does not clearly constitute an adoption of the decree that he was contesting. Applying the principle derived from the cases discussed above, a person who derives a benefit under an order that is separate from the merits of the claim cannot repudiate the portion of the order that is detrimental to him, because the order is intended to operate as a whole.
The decree must be given effect in full. The Court observed that it is difficult to describe a vendee in a pre‑emption suit, against whom a decree has been passed, as receiving any “benefit” from that decree. While the vendee certainly possesses a right to receive the pre‑emption price before the decree becomes operative, the price itself cannot be characterised as a benefit arising under the decree. Rather, it constitutes compensation to the vendee for the loss of his property. Consequently, the principle articulated in the earlier decision does not extend to a decree of this nature.
The Court noted that a similar question had arisen in several cases decided in the Punjab, most notably in the judgment of Lal Chand, J., in Sundara Das v. Dhanpat Rai (1). In that case the Court held that the vendee’s right of appeal is not lost merely because he has returned the money deposited by the pre‑emptor, even though a decree for pre‑emption in favour of the pre‑emptor had been issued. The learned judge did not refer to the decisions in Tinkler’s case (2) or Pearce’s case (3); therefore those judgments, and other similar authorities, offered little assistance in addressing the argument presented by counsel for the appellant.
The Court further expressed that, in the absence of a specific statutory provision or a well‑recognised equitable principle, no party may be deprived of his legal entitlements, including a statutory right of appeal. It explained that the expression “approbate and reprobate” originates from Scots law and reflects the English doctrine of election, which forbids a party from both accepting and rejecting the same instrument (as noted by Scrutton, L.J., in Verschures Creameries v. Hull and Netherlands Steamship Co. (4)). The House of Lords, in Lissenden v. C. A. V. Bosch Ltd. (5), clarified that the equitable doctrine of election applies only when an interest is conferred as a gratuitous act by an instrument. In that decision the Lords held that a workman’s withdrawal of compensation money deposited by the employer could not extinguish the statutory right of appeal granted to him under the Workmen’s Compensation Act.
Lord Maugham, after discussing the limits of the doctrine of approbate and reprobate, concluded his speech by stating, “It certainly cannot be suggested that the receipt of the sum tendered in any way injured the respondents. Neither estoppel nor release in the ordinary sense was suggested. Nothing was less served than the principles either of equity or of justice.” (1) (1907) P.R. No. 16. (2) (1849) 4 Ex. 187: 154 E.R. 1176. (3) (1846) 9 Q.B. 802: 115 E.R. 1483. (4) [1921] 2 K.B. 608. (5) [1940] A.C. 412. (pp. 421‑422). Lord Wright concurred with Lord Maugham and Lord Atkin and declined to apply the “formula” to the appeal before the House, observing that there was no situation in which the appellant possessed an alternative or mutually exclusive right from which to choose. The Court affirmed that, without a clear statutory ground, the appellant’s right of appeal could not be taken away merely because of the withdrawal of the pre‑emption price.
Lord Atkin observed that, in a hypothetical situation, the acceptance of a remedy awarded by a judgment could, under certain circumstances, prevent the filing of an appeal. However, he expressed that it was not necessary to examine the exact conditions under which a statutory right of appeal might be lost, and he added that when such questions arise, it may be difficult to apply the doctrine of election to cases where the only existing right is the one created by the judgment itself, while the only competing right is the statutory power to seek the setting aside or amendment of that judgment. He suggested that a more appropriate solution could be found in the words of Lord Blanesburgh in the case of Moore v. Cunard Steamship Co. According to Lord Blanesburgh, when an appealed‑against order is later set aside and the order has been acted upon in the interim, any disadvantage that has arisen is rectified by an appropriate subsequent order. Consequently, the central issue to be examined is whether the party who has appealed has acted in a manner that makes restitution impossible or inequitable. The House of Lords therefore indicated that the principle underlying the decision in Tinkler’s case applies only in situations where a party’s conduct has rendered restitution impossible or inequitable. Referring to Tinkler’s case and three other similar authorities, Lord Atkin noted that these cases provide a very flimsy foundation for a sweeping principle that would apply to all appeals, and that even if they were taken to support such a result, the principle should not be followed. The Lissenden case, in clear terms, outlined the limitations of the Scottish doctrine. If the rulings in those cases represent the common law of England as determined by its highest judicial tribunal, then only that law may be applied by the courts of this country on the basis of natural justice, not the earlier decisions that were thought to constitute common law. It therefore appears that a statutory right of appeal cannot be assumed to have terminated simply because the appellant has, in the meantime, complied with or benefited from an act performed by the opponent under the decree, and there is no justification for extending the rule articulated in Tinkler’s case to the present circumstances. The principle should be confined to cases where a person has elected to receive a benefit that is not based on the merits of the claim but rather on an order that conferred a benefit to which he would not have been entitled otherwise. In the present matter, the appellant’s withdrawal of the pre‑emption price does not constitute a benefit taken outside the merits of the case, and moreover, this is not a situation where restitution is impossible or inequitable. Consequently, the doctrine of approbate and reprobate does not apply, and the appellant’s right to maintain the appeal remains intact.
The Court observed that the presence of an alternative between two rights is a necessary condition for the doctrine of approbate and reprobate to apply. In the present matter, the Court found that the appellant was not presented with any such alternative in law. Consequently, the appellant’s decision to withdraw the pre‑emption price did not bar him from pursuing his appeal in this case. Accordingly, the Court rejected the preliminary objection that had been raised against the appellant’s appeal in the lower court. The appeal was consequently ordered to be listed for a substantive hearing on its merits before the Court. The costs associated with that hearing were directed to be treated as costs of the appeal itself in this proceeding. The doctrine requires that a litigant must have exercised one of two mutually exclusive rights, and that the choice must be genuine. When the litigant’s conduct does not involve such a selective exercise, the doctrine cannot be invoked to extinguish the right to appeal. The Court therefore concluded that the appellant’s withdrawal of money was a voluntary act that did not constitute the exercise of a rival right that would preclude appellate review. As a result, the procedural bar raised by the opposition could not stand, and the matter was allowed to proceed to examination of the substantive issues.
Justice Sarkar expressed the view that the objection to the maintainability of the appeal should be affirmed, thereby sustaining the argument that the appeal could not proceed. He reasoned that because the appellant had already taken the benefit of the decree, he could not subsequently challenge the decree’s validity. The decree originated from a pre‑emption suit filed in May 1951 by the respondent Baijnath against the appellant, who had purchased the property, and against the vendors. The vendors, who were also respondents in the original suit, did not appear before this Court in the present appeal. The trial court dismissed the suit, but on appeal the Judicial Commissioner of Vindhya Pradesh issued a decree on 24 March 1952. The Judicial Commissioner held that the respondent possessed the right of pre‑emption and ordered the respondent to pay Rs. 3,000 as purchase money into court within four months. The respondent duly complied with the order by depositing the stipulated sum of Rs. 3,000 in court as required. The appellant subsequently obtained special leave from this Court to appeal the Judicial Commissioner’s judgment and thereafter withdrew the amount that had been paid by the respondent. The present appeal is therefore grounded upon the special leave that the appellant obtained from this Court for this proceeding. The decree, although informal, stated only that the appeal was allowed with costs and that a grace period of four months applied. Under Order XX, Rule 14 of the Code of Civil Procedure, the decree, despite its informality, required that upon the respondent’s timely payment, the appellant would deliver possession of the property to the respondent. The respondent’s title to the property would be deemed to have accrued from the date of that payment, and if the payment were not made, the suit would be dismissed with costs. The Court found no doubt that the appellant’s withdrawal of the money from court was a decision made entirely of his own volition, without any compulsion or inducement from the respondent. The respondent had taken no steps to enforce the decree or to take possession of the property from the appellant. The appellant was under no obligation to withdraw the money; he could have retained it without prejudice to his interests. He had remained in possession of the property since his purchase on 7 June 1950 and had continued to enjoy its benefits.
The appellant withdrew the money from the court on 14 November 1953, thereby accepting the amount that the decree had ordered to be paid. In the view of the Court, those facts prevent the appellant from further pursuing the appeal. A litigant may not follow inconsistent courses of conduct. By voluntarily withdrawing the money, the appellant adopted the decree and is therefore barred from contesting its validity. The appellant possessed no entitlement to the money other than the right conferred by the decree; having exercised that right, he cannot now claim that the decree was invalid and that the right he exercised never existed. This principle is firmly established both in English law and in Indian jurisprudence, and, to the Court’s knowledge, has never been departed from.
Early authority demonstrates this rule. In the 1849 case of Tinkler v. Hilder (1), Chief Baron Pollock observed that an order could be set aside only on the narrow ground that the party seeking to set it aside had, in fact, adopted it by accepting something under it. The same reasoning was applied in King v. Simmonds (2) and Pearce v. Chaplin (3). Those decisions noted that the orders were considered adopted because the parties had received costs that they were required to pay under the orders. Although in those cases the parties were not entitled as a matter of right to the costs, the Court did not regard this distinction as material. The essential question remains whether it is inconsistent conduct to accept a benefit conferred by an order and thereafter challenge the order. For the purpose of this inquiry, costs are treated as a benefit comparable to any other advantage granted by the order. The same analysis applies when the order is discretionary or when no right ex debito justitiae exists; there is no reason to conclude that inconsistency cannot arise if benefits under such orders are later contested. The discretionary nature of the order does not, in the Court’s view, affect the principle of inconsistency.
More recent authority illustrates the same doctrine. In Dexters Ltd. v. Hill Crest Oil Co. Ltd. (4), a party who had received money under an award rendered in a commercial arbitration – an award that had been entered as a judgment in a special case stated to the court – was held to be precluded from appealing that judgment. This case differs from the earlier English authorities because the adoption of the order arose not from the receipt of costs but from the receipt of the monetary sum awarded. The principle remains that a party who has accepted a benefit pursuant to an order or judgment cannot subsequently challenge the validity of the order that supplied that benefit.
In the matter before the Court, the discussion turned upon the effect of a party’s acceptance of money that was awarded by a judgment. The Court noted that the money which had been claimed by the successful party was actually paid out under the award. Scrutton, L.J., observing at page 358, remarked that it was surprising to hear an argument that a person could simultaneously claim that a judgment was wrong and accept payment under that same judgment as if it were correct. The Court then concluded the reference to English authority by citing Lord Russell of Killowen’s observation in Evans v. Bartlam (1) that “a man having accepted a benefit given him by a judgment cannot allege the invalidity of the judgment which conferred the benefit.” Turning to Indian jurisprudence on the same point, the Court listed several decisions: Manilal Guzrati v. Harendra Lal (2), Banku Chandra Bose v. Marium Begum (3), Humrybux Deora v. Johurmull Bhotoria (4) and Venkatarayudu v. Chinna (5). In the case of Humrybux Deora (4), which arose on appeal from a decree in a suit for redemption of a mortgage, the plaintiff had accepted the amount declared by the trial Court’s decree as due from the mortgagee in possession and had also taken receipt of the income from the mortgaged property. Subsequently, the plaintiff filed an appeal seeking a larger sum. Rankin, C.J., delivering the judgment of the Court, held that there was no inconsistency in the appellant’s conduct and consequently that the rule previously discussed was inapplicable. The Court affirmed that this finding was plainly correct because the appellant had accepted the decree and, in the appeal, did not dispute its correctness as such but merely contended that the decree had not gone far enough in satisfying his claim.
The Court further observed that the appellant’s behaviour was not a case of “blowing hot and cold” but rather of “blowing hotter,” a description drawn from Greer, L.J., in Mills v. Duckworth (6). The Court then referred to several English cases—King v. Simmonds (7), Pearce v. Chaplin (8) and Tinkler v. Hilder (9)—which had been cited earlier, noting the full citations: Evans v. Bartlam (1) [1937] A.C. 473, 483; Manilal Guzrati v. Harendra Lal (2) (1910) 12 C.L.J. 556; Banku Chandra Bose v. Marium Begum (3) (1916) 21 C.W.N. 232; Humrybux Deora v. Johurmull Bhotoria (4) (1929) 33 C.W.N. 711; Venkatarayudu v. Chinna (5) (1930) 58 M.L.J. 137; and Mills v. Duckworth (6) [1938] 1 All E.R. 318. Rankin, C.J., at page 714, stated that the earlier English authorities were “clearly inapplicable except upon the basis that the Defendant is seeking to challenge an order after accepting the benefit of a term or condition imposed upon the Opposite Party at whose instance the order was made.” He concluded that such a basis did not exist in the present case. Rankin, C.J. also cited the older English decision Kennard v. Harris (1). In that case, the rule permitting the setting aside of an arbitrator’s award was discharged when it was shown that the party seeking relief had accepted the costs of the reference and the award. Referring to Kennard v. Harris, Rankin, C.J., quoted at page 713 that “a person who accepts costs payable under an award or any other sum of money given to” the party is consequently barred from asking the Court to set aside the award.
The Court observed that a person who receives money by an award is precluded from asking the Court to set aside that award. The Court further noted that an award is ineffective unless it addresses the entire matter that was submitted, and that, on its face, an award cannot be set aside in only part; it must be dealt with as a whole. The judgment suggested that Rankin, C.J. was drawing a clear distinction, which appears correct, between an award that can be set aside only in its entirety because it is one indivisible instrument, and a judgment that may contain severable parts, where the acceptance of one part by a party would not necessarily prevent that party from challenging another independent part. The Court expressed the view, with due respect, that Rankin, C.J. did not correctly apply the principle of Kennard v. Harris to the facts before him, because no portion of the judgment was being contested by the appeal, except perhaps an independent portion that, by implication, rejected the appellant’s claim to a larger sum. Turning to Venkatarayudu’s case, the Court cited the observations of Venkatasubba Rao, J., who after reviewing several authorities, stated (p. 141) that “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.” The Court found it beyond doubt that the principle articulated in those cases applies to the present appeal. In the present matter there exists a decree that is one and indivisible. The decree provides that, upon the respondent depositing the money into court, the respondent becomes entitled to the property and may obtain possession of it, while the appellant becomes entitled to the withdrawal of the money. The appellant possessed no independent right to the money apart from the decree and had no authority to compel the respondent to purchase the property by paying a price. In fact, the appellant had argued that the respondent was not entitled to purchase the property by paying the price. The appellant could have drawn the money only because the decree had been properly passed. Consequently, by withdrawing the money, the appellant accepted its correctness and therefore could not later claim that it was incorrect. The Court noted that the observation of Venkatasubba Rao, J., in Venkatarayudu’s case—that allowing a party who has taken a benefit under such an order to complain against it would amount to a breach of faith—applies fully to the appellant’s conduct. The Court also referred to the observations of Rankin, C.J. in Hurrybux Deora’s case concerning the authorities King v. Simmonds, Pearce v. Chaplin and Tinkler v. Hilder, and concluded that the present case involves an appellant seeking to challenge an order after having accepted the benefit of a term or condition imposed upon the respondent at whose instance the order was made.
The Court observed that the order in question was obtained after the appellant had accepted the benefit of a term or condition, specifically the payment of money into court, which had been imposed on the respondent at the respondent’s own request. The obligation to pay that money was clearly a condition imposed upon the respondent, as the decree expressly stipulated that failure to make the payment would result in the dismissal of the suit with costs. The judgment therefore resembled an award that is indivisible and cannot be set aside in parts. The Court referred to several authorities, including the observations in the cases reported at (1) (1930) 58 M.L.J. 137, (3) (1845) 7 Q.B. 289, (2) (1929) 33 C.W.N. 711, (4) (1846) 9 Q.B. 802, and (5) (1849) 4 Exch. 187 : 154 E.R. 1176. Rankin, C. J., in the context of Kennard v. Harris, held that a person who accepts costs or a sum of money awarded to him may not subsequently seek to have it set aside; the Court found this principle equally applicable here. Consequently, the Court could not conceive the judgment as composed of separate, severable portions. The appellant’s counsel could cite only one case to support the contention that the appeal could proceed, namely Sunder Das v. Dhanpat Rai (2), which also involved a pre‑emption decree.
In Sunder Das v. Dhanpat Rai (2), the plaintiff had obtained a decree of pre‑emption, executed it, and taken possession of the relevant property. The defendant appealed the decree in the first appellate court and was unsuccessful; he then appealed to the Chief Court at Lahore. While that appeal was pending, the defendant withdrew the purchase money that had been paid into court by the plaintiff under the trial‑court decree. The Chief Court held that this withdrawal did not preclude the defendant from continuing his appeal. The facts of that case differed substantially from those before the present Court. It may be argued that the defendant, having been compelled to part with the property, was justified in retrieving the money and that such a withdrawal did not constitute an adoption of the decree. The present Court disagreed, holding that the appellant’s withdrawal of the money constituted acceptance of the decree and therefore barred any challenge. The Court expressed no opinion on whether Sunder Das was correctly decided, but concluded that even if it were, the case did not establish a principle allowing the appellant to proceed with the present appeal. Accepting the Sunder Das authority would conflict with the uniform principles laid down in the earlier authorities, none of which were cited in the judgment under appeal. Accordingly, the Court found Sunder Das (2) to lack sufficient authority to justify departing from the established rule. (1) (1824) 2 B. & C. 801 : 107 E.R.
Before reaching a final conclusion, the Court referred to the relatively recent decision in Lissenden v. C. A. V. Bosch Ltd. (1). In that appeal a workman had been granted compensation for a period of partial incapacity that ended on a specified date. After receiving the awarded sum, the workman filed an appeal seeking further compensation for the time he remained incapacitated beyond that date. The Court of Appeal, feeling bound by its earlier ruling in Johnson v. Newton Fire Extinguisher Company (2), reluctantly held that once the workman had accepted part of the award, he could not challenge the award’s validity by appealing. The judgment in Johnson (2) appeared to assert that a workman could not accept a portion of an award and at the same time seek to amend another portion, describing such a course as an attempt to “approbate and reprobate” the award, which was not permissible. The House of Lords, however, overturned the view expressed in Johnson (2) in the Lissenden case (1). It held that the earlier decision had been wrongly decided and that the workman remained entitled to pursue the appeal. The Lords explained that acceptance of the amount already adjudicated as due did not bar the workman from seeking additional relief. The reasoning was likened to the situation before Rankin, C. J., in Hurrybux Deora v. Johurmull Bhotoria (3). The essential finding of the House of Lords was that there was no inconsistency between adopting the award and maintaining an appeal. The Court noted, however, that this principle could not be applied to the matter presently before it.
The House of Lords also observed that the Court of Appeal had misunderstood the doctrine against “approbating and reprobating.” It explained that the doctrine originated in Scottish law and, in England, had been equated by leading authorities with the equitable principle of election. The Lords pointed out that the equitable principle of election depended upon the intention of the party who executed an instrument, and therefore it was not applicable to the case under consideration. Moreover, the Lords remarked that the common‑law principle of election required the existence of two mutually exclusive rights or remedies, of which only one could be chosen, a situation that did not arise in an appeal where there were no two distinct rights. Consequently, the Court concluded that the observations of the House of Lords on the “approbating and reprobating” doctrine did not affect the issue before it. All the judges who had delivered opinions, including Lord Atkin, who expressed a modest reservation, accepted the position that a litigant could forfeit his right to appeal because of his conduct after the judgment or award, such conduct operating to estop or otherwise release his right of appeal.
The Court observed that a litigant’s conduct may either estop him from appealing or be treated, either in equity or at law, as a surrender of his right of appeal, referring to the passages on pages 420, 429, 430 and 434. Consequently, the decision in Lissenden’s case (1) does not, in the Court’s view, cast any doubt on the principle that a party may be barred from pursuing an appeal when that appeal would be inconsistent with his earlier conduct concerning the decree that is now being challenged. The Court noted that English courts appear to share this view of Lissenden’s case (1). For example, in Baxter v. Eckersley (2) the Court of Appeal expressly endorsed the principle laid down in Dexter’s case (3). Likewise, in Banque Des Marchands De Moscou v. Kindersley (4) Mr. Justice Evershed, referring to the expressions “approbating and reprobating” and “blowing hot and blowing cold,” explained at page 119 that these terms signify, first, that the party is to be regarded as having made an election from which he cannot retreat, and, second, that the party will not be considered to have made such an election unless he has obtained a benefit from the conduct he initially pursued and his present action is inconsistent with that conduct. Both of those decisions were rendered after Lissenden’s case (1). Taken together, these authorities leave no doubt that the rule barring inconsistent conduct is well established. The Court therefore concluded that, for the reasons previously set out, the rule is properly applicable in the present matter and that the appellant may not be permitted to continue with the appeal.
The Court further clarified that the application of the rule depends on the facts of each case and on whether an actual inconsistency exists. Having found that the appellant had adopted the decree in the present case, the Court held that proceeding with the appeal would create an inconsistency in the appellant’s conduct. Accordingly, the Court decided that the appeal must be dismissed. The Court also stressed that the appellant’s withdrawal of the money after obtaining leave from this Court does not affect the applicability of the principle; the withdrawal itself constituted adoption of the decree and therefore precludes the appellant from pursuing the appeal. The same inconsistency would have arisen even if the withdrawal had occurred before the leave was granted. Accordingly, the Court dismissed the appeal with costs. By order of the Court, the preliminary objection was overruled in accordance with the majority judgment, and the appeal was thereafter set down for hearing on its merits.