The principle of accepting costs and challenging the order was applied, and the Court found that the appeal was entitled to be heard according to law.

Grille, J C—In an Insolvency case an application has been made under S. 53 of the Provincial Insolvency Act for setting aside a transfer. On 24th July 1934 an application was made for permission to amend the application under S. 53 and this was allowed subject to the payment of Rs. 21 as costs, and the case was fixed for hearing on 21st August 1934 on which date the costs were tendered and accepted by the transferees. One of them however presented an appeal against the order allowing the amendment on 20th August, that is the day before the costs were tendered and accepted. In appeal a preliminary objection was raised by the respondents that on the principle enunciated in 30 N.L.R. 347 Abdul Rahman Khan v. Failkoos Mohmad Khan,1934 30 NLR 347 it should be held that the appeal did not lie. The appellate Court agreed with this preliminary objection and dismissed the appeal. Against this order an application in revision has been preferred. In 30 N.L.R. 347 , Subhedar, A.J.C. held that if in a case where a relief was granted subject to the payment of costs, the costs are accepted, the person receiving the costs cannot be permitted to challenge the order unless he either does not accept the benefit which he derived from the order or he accepts it expressly reserving his right to challenge that order. It is also admitted in argument before me, a fact which is not stated in 30 N.L.R. 347 , that the principle therein does not apply when the order granting relief is unconditional and can be dissociated from the order granting costs. The order in the Court ran as follows:

24th July 1934-I have read the application under consideration and heard the pleaders of parties; the allegations now sought to be amplified should have been pleaded and recorded at the stage of pleadings. But it was not done. The provisions of law contained in R. 6 or R. 7, Civil P.C., confer very wide powers and discretion. But these must be exercised judicially. Amendment can be allowed at any stage provided it is made in good faith and does not change the nature of the case, and it also does not prejudice the opponent's case. There is no question regarding the third condition. As regards the second, the allegation of fraud is already on record and it has to be amplified with more details. In such a case, the proposed amendment ought to be granted. It could not be refused. See the case reported in 48 Cal 832. at 835 Ma Shive Mya v. Maung Mo Hnaung,1922 48 IndApp 214. The questions that the case was closed for arguments and hence the application wa9 delayed are immaterial. See the cases reported in 57 Cal 398 Chartered Bank of India v. Imperial Bank of India, 1930 127 IndCas 772 55 All 256 Kisshan Lal v. Ramchandra, 1933 145 IndCas 859 Murugappa Chettiar v. A.C. Galliara, 1934 151 IndCas 190 has no application. The facts of the case were quite different. I, therefore, allow the amendment as prayed in the applicant's application of 14th July 1934, but subject to the payment of Rs. 21 as costs to non-applicant and further they shall bear all the costs of their witnesses incurred until now irrespective of the result of the proceedings. For payment of costs and statements on the detailed allegations on 21st August 1934.

2. On this the learned District Judge appears to be of opinion that the order is a conditional order and this appears to be so from the comments on the cases in 1923 P.C. 13 Sarat Kumari v. Amulyadhan, 1923 71 IndCas 632 Nalinakha Sinha v. Ram Taran Pal, 1927 104 IndCas 151 which he states do not help the appellant in his Court as the order in each case was unconditional. I may note however that the learned District Judge in Para. 2 of his judgment appears to have come to the opposite conclusion where he says:

It is difficult to hold that the order passed by the Insolvency Court on 24th July 1984 is not an unconditional order.

3. Canceling the two negatives it will read ''it is difficult to hold that the order is a conditional order;'' that is to say t