The principle of "approbate and reprobate" applies to orders made by courts. A party cannot accept the benefit of an order and then challenge the same order.

( 1 ) THIS application in revision on behalf of the plaintiff is directed against the order dated 15th March, 1954 of the District Munsif, Cuddappah, setting aside an ex parte decree in Small Cause Suit No. 106 of 1953.

( 2 ) THE learned advocate for the respondent raised the preliminary objection that as the counsel for the petitioner in the Court below has accepted the costs awarded by the Court below as a term for setting aside the ex parte decree, he cannot now challenge the propriety of the order under revision. In support of his contention, he placed reliance upon Gadde Venkatarayudu v. Anumolu Chinna Ramakrishnayya1. It has been held therein that where an order is made restoring a suit which has been dismissed for default on condition of paying certain sum as costs for defendant, the latter if he accepts costs unconditionally cannot afterwards question the order. Venkatasubbarao, J. , after reviewing a number of Indian and English decisions observed :"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. " ramesam, J. , elaborated the point by saying that the true basis of the rule is not estoppel by conduct but that a person cannot both approbate and reprobate. If the authorities upon which these pronouncements are based are still good law, I have no choice but to follow them and pass order in accordance therewith. But I find that the scope of the doctrine of approbate and reprobate was considered by the House of Lords in two cases. In Evans v. Bartlam, L. R. (1937) A. C. 473. it has been held that a judgment-debtor who asks for and obtains a stay of execution does not there by approbate the judgment or elect to treat it as binding so as to preclude him from thereafter seeking to set it aside whether on appeal or otherwise. In the case of Lissenden v. C. A. V. Boset, Ltd. , L. R. (1940) A. C. 412 Viscount Maugham discussed the expression "approbate and reprobate" and explained its scope. The learned Law Lord at page 418 of the report, after quoting Lord Cairns, L. C. , from L. R. 7 H. L. 861 observed :- "in the light of these authorities it seems that the phrase " you may not approbate or reprobate. "or the Latin " quod approbo non rtprobo ", as used in England is no more than a pricturesque synonym for the ancient equitable doctrine of election, originally derived from the Civil Law.

( 3 ) IT is perhaps well to observe here that the equitable doctrine of election has no connection with the common law principle which puts a man to his election (to give a few instance only) whether he will affirm a contract induced by fraud or avoid it, whether he will in certain cases waive a tort and claim as in contract, or whether in a case of wrongful conversion he will waive the tort and recover the proceeds in an action for money had and received. These cases mainly relate to alternative remedies in a Court of Justice. . . . . . My Lords I am quite unable to see how this doctrine can be made to apply to the rights of a litigant to appeal ".

( 4 ) IN this view of the law, with which, I with respect agree, the preliminary objection ought to fail. The portion of the judgment of the learned District Munsif which was strenuously challenged before me runs as follows :"the learned counsel for the petitioner has also relied upon Sri Newas v. Lala durga Prasad, (1947) Alll. J. 204. for the proposition that the filing of a draft bond as security is itself sufficient and it is not necessary under the provisions of section 17 of the Provincial Small Cause Courts Act that the security should have been accepted in toto. In the above quoted decision, a reference is made to the Full Bench decision in Ram Bharose v. Ganga Singh, (1931)I. L. R. 54 All. 154 wherein it was held that the question whether the security is sufficient and satisfactory need not be finally

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