An appeal by a plaintiff obtaining only the alternative relief of refund of the earnest money or advance money, and who has been denied the relief of specific performance, is a competent appeal.

Nainar Sundaram, J.

1. The question that presented difficulty to the learned Judge of this Court and which obliged them to refer the same to a Full Bench concerns the legal propriety of the plaintiff, who sued for specific performance of a contract of a sale and who also, in the same suit, asked in the alternative, for the relief of refund of earnest money or advance money, paid under the contract of sale, preferring an appeal against the judgment and decree of the first Court, which granted him only the relief of return of the earnest money or advance money, on denying him the relief of specific performance. There are two pronouncements, both of Division Bench of this Court: One in Sakku Bai Ammal v. R. Babu Reddiar, and the other in Senniappa Gounder v. V.K. Venkataraman, (1981) 94 Mad LW 591. The earlier Bench expressed the view that when the plaintiff asked for reliefs in the alternative, he places such reliefs on par with each other and he makes an election even threshold, leaving entrely the grant of the one or the other of the reliefs to the Court and after the grant of one such alternative relief, he is not an aggrieved person, who could carry the matter to the higher Court for the grant of that relief, which was not given by the first Court. The latter Division Bench, however, opined that the proper test to he applied is whether there is any inconsistent intention or conduct on the part of the appellant to approbate the judgment, appealed against, by taking a benefit therefrom and to reprobate the judgment by appealing against it. There are two pronouncements of the Supreme Court; one in Bhau Ram v. Baij Nath Sing. AIR 1961 SC 1327, and the other Ramesh Chandra Chandiok v. Chumilal Subharwal, AIR 1971 SC 12.18. We will presently advert to these pronouncements. There seems to be an opinion and understanding about these pronouncements that they do not lend support to each other.

2. The law relating to specific performance of contracts stands codified. Chapter II of the Specific Relief Act 47 of 1963, hereinafter referred to as the Act, sets down the provisions governing specific performance of contracts. For our purpose, S. 22 of the Act is relevant and it stands extracted as follows :--

"(1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908, any person suing for the specific performance of a contract for the transfer of immovable property may in an appropriate case, ask for-

(a) possession, or partition and separate possession, of the property, in addition to such performance; or

(b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or (made by) him, in case his claim for specific performance is refused.

(2) No relief under clause (a) or clause (b) of sub-section (1) shall be granted by the Court unless it has been specifically claimed;

Provided that where the plaintiff has not claimed any such relief in the plaint, the Court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just for including a claim for such relief.

(3) The power of the Court to grant relief under clause (b) of "sub-section (1) shall he Without prejudiced to its powers to award compensation under Section 21."

We are not concerned with clause (a) of subsection (1) thereof. The reliefs thereunder are in addition to specific performance. We are concerned with clause (b) of sub-section (1), which speaks about the alternative reliefs the plaintiff could ask for. The alternative reliefs would include the refund of any earnest money or deposit paid or made by the plaintiff. The grant of the alternative relief would arise only in case the plaintiff's claim for specific performance is refused. When the plaintiff asks for the alter native relief, there is no legal presumption or assumption that he gives up the main or primary relief of specific performance of the contract. The plaintiff primarily wants the relief of specific perfor