BHAU RAM versus B. BAIJNATH SINGH AND OTHERS

BHAU RAM versus B. BAIJNATH SINGH AND OTHERS

The act of withdrawing the pre-emption price by the appellant does not amount to adoption of the decree being appealed from, and there is no statutory or equitable ground to deprive the appellant of his right of appeal. The doctrine of approbate and reprobate applies where a party elects to take a benefit apart from the merits, which is not so in the case of withdrawal of pre-emption price as it is only compensation for loss of property. Hence, the preliminary objection is overruled and the statutory right of appeal remains unaffected.

Parties
Appellant: Bhau Ram; Respondent No. 1: Baijnath Singh
Jurisdiction
India
Judgment Date
16 March 1961
Procedural Posture
Civil Appeal by Special Leave / Preliminary Objection to Maintainability of Appeal
Outcome
Preliminary objection overruled; appeal set down for hearing on merits.
Legal Topics
Right of Appeal, Pre Emption Decree, Appropriate and Reprobate Doctrine, Statutory Right of Appeal
Constitutional Law Civil Procedure Right of Appeal Pre Emption Decree Appropriate and Reprobate Doctrine Statutory Right of Appeal

Case Brief

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Parties

Bhau Ram

Appellant

Baijnath Singh

Respondent No. 1

Procedural Posture

Civil Appeal by Special Leave / Preliminary Objection to Maintainability of Appeal

Legal Issues

  1. 1 Whether the act of the appellant in withdrawing the pre-emption price precluded him from proceeding with the appeal against the decree for pre-emption on the ground that he accepted the decree.
  2. 2 Whether the doctrine of approbate and reprobate or any statutory or equitable principle bars the appellant's statutory right of appeal after withdrawal of the pre-emption price.

Ratio Decidendi

The act of withdrawing the pre-emption price by the appellant does not amount to adoption of the decree being appealed from, and there is no statutory or equitable ground to deprive the appellant of his right of appeal. The doctrine of approbate and reprobate applies where a party elects to take a benefit apart from the merits, which is not so in the case of withdrawal of pre-emption price as it is only compensation for loss of property. Hence, the preliminary objection is overruled and the statutory right of appeal remains unaffected.

Court Disposition

Preliminary objection overruled; appeal set down for hearing on merits.

Orders

  • Preliminary objection to maintainability of appeal is overruled.
  • Appeal to be set down for hearing on merits.