Case Note & Summary
The dispute arose in a pre-emption suit concerning property in Vindhya Pradesh governed by the Rewa State Pre-emption Act, 1949. The plaintiff-respondent (pre-emptor) sought enforcement of right of pre-emption against defendant-appellant (vendee). The trial court dismissed the suit, but on appeal the Judicial Commissioner's Court, Vindhya Pradesh, by decree dated March 24, 1952, allowed pre-emption subject to the plaintiff depositing the purchase money into court within four months, upon which title would accrue. The defendant-appellant applied for special leave to appeal to the Supreme Court, and leave was granted on May 20, 1953, limited to constitutional challenge under Article 19(1)(f) of the Constitution. Meanwhile, the plaintiff-respondent deposited the pre-emption price, and on November 14, 1953, the appellant withdrew the amount. When the appeal came for hearing, respondent raised preliminary objection that appellant by withdrawing the money had accepted the decree and could not approbate and reprobate, thus precluded from pursuing appeal. The Supreme Court, by majority (Mudholkar, Gajendragadkar, Subba Rao, Wanchoo JJ; Sarkar J dissenting), held that withdrawal of pre-emption price did not amount to adoption of the decree. The court reasoned that the doctrine of approbate and reprobate applies only where the benefit conferred by the order is something apart from the merits of the claim; pre-emption price is compensation to vendee for loss of property, not a benefit under the decree. Reliance was placed on Lissenden v. C.A.V. Bosch Ltd., where House of Lords held that acceptance of compensation under a workmen's compensation award did not bar statutory appeal, and that statutory right of appeal cannot be presumed to have ended merely because appellant took advantage of something done by opponent under decree. The court concluded that only if party has so conducted himself as to make restitution impossible or inequitable may appeal be lost, which was not the case. Accordingly, preliminary objection was overruled and appeal allowed to proceed for hearing on constitutional merits. The dissenting judge, Sarkar J., opined that the decree was one and indivisible and by withdrawing money appellant adopted its correctness, thus barred. However majority view prevailed.
Headnote
A) Civil Procedure - Doctrine of Approbation and Reprobate - Withdrawal of pre-emption amount by vendee does not amount to adoption of decree - Rewa State Pre-emption Act, 1949; Constitution of India, 1950, Article 19(1)(f) - In a suit for pre-emption, respondent deposited pre-emption price in court and appellant withdrew it after filing appeal challenging decree. Respondent argued appellant approbated and reprobated and thus precluded from appeal. The Supreme Court held that the benefit conferring order must be something apart from merits; pre-emption price is compensation, not benefit, hence doctrine not applicable. (Paras not mentioned) B) Constitutional Law - Statutory Right of Appeal - Acceptance of monetary amount under decree does not forfeit statutory right of appeal unless restitution impossible or inequitable - Constitution of India, 1950, Article 19(1)(f); Workmen’s Compensation Act, 1923 (referred in Lissenden) - Court relied on Lissenden v. C.A.V. Bosch Ltd., where House of Lords held receipt of compensation did not bar statutory appeal. Only if party has so conducted himself as to make restitution impossible or inequitable may appeal be lost. Here withdrawal of pre-emption price did not cause such prejudice. (Paras not mentioned) C) Pre-emption Law - Nature of Pre-emption Price - Price paid to vendee in pre-emption decree is compensation for loss of property, not benefit under decree - Rewa State Pre-emption Act, 1949 - A vendee against whom pre-emption decree is passed has right to be paid pre-emption price before decree becomes effective, but the price is compensation and cannot be characterized as benefit under the decree. Therefore withdrawing it did not amount to adoption of decree, and statutory right of appeal remained intact. (Paras not mentioned)
Issue of Consideration
Whether the appellant, by withdrawing the pre-emption price deposited by the respondent after filing an appeal challenging the decree, is precluded from proceeding with the appeal on the ground of approbation and reprobate.
Final Decision
The preliminary objection was overruled. The Supreme Court held that the appellant was not precluded from proceeding with the appeal. The act of withdrawing the pre-emption price did not amount to adoption of the decree, and the statutory right of appeal remained intact. The appeal was allowed to proceed for hearing on the constitutional merits.
Law Points
- Pre-emption price is compensation not benefit
- doctrine of approbate and reprobate applies only to benefits de hors merits
- statutory right of appeal not lost unless restitution impossible or inequitable
- equitable doctrine of election limited
- Lissenden principle
