:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL APPEAL APPEAL NO.1003 OF 2005 NO.1003 OF 2005 NO.1003 OF 2005 IN IN IN NOTICE NOTICE NOTICE OF MOTION NO.2404 OF 2004 OF MOTION NO.2404 OF 2004 OF MOTION NO.2404 OF 2004 IN IN IN SUMMARY SUMMARY SUMMARY SUIT NO.3164 OF 2001 SUIT NO.3164 OF 2001 SUIT NO.3164 OF 2001 M/s. Dev Sha Corporation a registered partnership firm, carrying on business at 12/14, Kazi Sayed Street, 2nd floor, Masjid Bunder, Mumbai-400 009 ..Appellants V/s Shree Ram Mills Ltd. a company incorporated under the provisions of the Companies Act, 1956 and having its registered office at Ganpatrao Kadam Marg, Lower Parel, Mumbai- 400 013 ..Respondents Shri J.P. Sen with M.A. Shah i/b A.G. Shah for the Appellants Shri G. Joshi with Ms Pratibha Mehta i/b Little and Co. for the Respondents CORAM ; S.A.BOBDE AND A.A.SAYED, JJ. DATE : 24TH MARCH, 2009 ORAL ORAL ORAL JUDGMENT (PER S.A.BOBDE, J.) JUDGMENT (PER S.A.BOBDE, J.) JUDGMENT (PER S.A.BOBDE, J.) 1. This appeal is preferred by the plaintiffs against the judgment of the learned Single Judge dated 17-6-2005 setting aside the exparte decree passed in his favour in a suit under Order 37 Rule 4 of Code of Civil Procedure. :2: 2. Shri Joshi, the learned Counsel for the respondents has raised a preliminary objection to the tenability of the appeal on two grounds. (a) According to the learned Counsel for the respondents, there is no provision in the Code of Civil Procedure including Order 43, for an appeal from an order setting aside a decree in a summary suit. Further, such an order not being a judgment, an appeal does not lie from it under Clause 15 of the Letters Patent of this Court. (b) the appeal is not tenable because the appellants have received the benefits of the order setting aside exparte decree by accepting costs imposed on the respondents thereby and are therefore, not entitled to maintain the appeal in view of law, laid down by the Supreme Court in Bhau Ram V. Baij Bhau Ram V. Baij Bhau Ram V. Baij Nath Nath Nath Singh and others, Singh and others, Singh and others, reported in AIR 1961 S.C. 1327. 3. The appellants sued the respondents for a sum of Rs. 5,94,597.99. On 14-1-2002 the Summons for Judgment was served on them. On 3-6-2003, the Court granted conditional leave to the respondents to defend the suit on deposit of sum of Rs. 5,94,597.99, within a period of 4 weeks. On 6-2-2004 :3: the Court passed an exparte decree against the respondents on failure to deposit the amount. 4. On 31-07-2004 a warrant of attachment was issued. This was stayed on 30-8-2004, on the respondents depositing a sum of Rs. 21,91,675/-. 5. The respondents then took out the notice of motion for setting aside the order granting conditional leave to defend the suit dated 6-3-2003 and exparte decree dated 6-2-2004. The learned Trial Judge declined to set side the order granting conditional leave to defend the suit but however granted the other prayer and set aside the exparte decree and granted extension of time to deposit the amount as ordered earlier. The plaintiffs have filed the present appeal against this order. 6. As regards the first objection to maintainability there is no doubt that the order setting aside a decree under order 37 Rule 4 of the Code of Civil Procedure is not appealable under Order 43 Rule 1 of CPC. However, it appears that such an order setting aside a decree under Order 37 Rule 4 :4: has been held to be a judgment within the meaning of clause 15 of the Letters Patent. In Shah Babulal Shah Babulal Shah Babulal Khimji Khimji Khimji V. Jayaben D. Kania and another V. Jayaben D. Kania and another V. Jayaben D. Kania and another, reported in 1981 SC SC SC 1786. The Supreme Court observed as follows: "Similarly, suppose the trial Judge passes an order setting aside an exparte decree against the defendant, which is not appealable under any of the clauses of Order 43, Rule 1 though an order rejecting an application to set aside the decree passed exparte falls within Order 43, Rule 1, clause (d) and is appealable, the serious question that arises is whether or not the order first mentioned is a judgment within the meaning of Letters Patent. The fact, however, remains that the orders setting aside the exparte decree puts the defendant to a great advantage and works serious injustice to the plaintiff because as a consequences of the order, the plaintiff has now to contest the suit and is deprived of the fruits of the decree passed in his favour. In these circumstances, therefore, the order passed by the trial Judge setting aside the exparte decree vitally affects the valuable rights of the plaintiff and hence amounts to an interlocutory judgment and is therefore, appealable to a larger Bench." Though the aforesaid observation are in respect of an order under order 9 Rule 13 we are of the view that they apply with equal force to an order setting aside the decree under order 37 Rule 4. We therefore, hold that an order setting aside a decree whether on the ground that it is exparte or otherwise is a judgment within the meaning of clause 15 of the Letters Patent :5: of this Court and is therefore appealable under that clause. 7. This takes us to the next objection pertaining to tenability viz. that the appeal is not tenable because the appellants have received the benefits under order setting aside the exparte decree and are therefore, not entitled to file this appeal. There is no dispute that the learned Judge imposed costs of Rs. 15,000/- while setting aside an exparte decree and extending the time to deposit the amount. The order was passed on 17-6-2005. The respondents tendered a cheque dated 27-6-2005 under a letter dated 28-6-2005. There is no dispute that the letter alongwith the cheque has been received by the appellant. The appellants retained the cheque without demur and without raising any objection and filed an appeal on 17-8-2005 i.e. after a period of about two months. The appeal was placed before a Division Bench of this Court. The Court admitted the appeal on 1st December,2005. Apparently, since an objection was raised by the respondents that the act of accepting the cheque and filing the appeal amounts approbation and reprobation the appellant returned :6: the cheque under letter 29-11-2005. Apparently the cheque was sent back by the respondents and the appellants have retained the cheque since then. Shri Joshi, the learned Counsel for the respondents submitted that it is a settled law that it is not permissible to approbate or repprobate by adopting one part of the order and refusing another part, when the order is intended to take effect in its entirety. The Supreme Court in Bhau Ram V. Baij Nath Singh and Bhau Ram V. Baij Nath Singh and Bhau Ram V. Baij Nath Singh and others others others, reported in AIR 1961 S.C. 1324, observed as follows:- "In support of his contention, learned Counsel has relied upon the well-known case of Tinkler v. Hilder, (1849) 154 ER 1176 and other cases which follow that decision or which proceed on the same reason as that in Tinkler’s case, (1849) 154 ER 1176. Those decisions are : Banku Chandra v. Marium Begum, 21 Cal WN 232 : (AIR 1917 Cal 546 )(SB); Ramendramohan V. Keshabchandra, ILR 61 Cal 433: (AIR 1934 Cal 554); Mani Ram V. Beharidas, (S) AIR 1955 Raja 145; Veeraswami Pillai V. Kalyanasundaram Mudaliar, AIR 1927 Mad 1009; Venkatarayudu V. Rama Krishnayya, AIR 1930 Mad 268 and Pearce v. Chaplin, (1846) 115 ER 1483. "The two English decisions just referred to and some of the Indian decisions were considered in AIR 1930 Mad 268. Dealing with them Venkatasubba Rao, J., observed as follows: "What is the principle underlying these decisions? when an order shows plainly that :7: 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. For instance, if the Court directs that the suit shall be restored on the plaintiff paying the costs of the opposing party, there is no intention to benefit the latter, except on the terms mentioned in the order itself. If the party receives costs, his act is tantamount to adopting the order........According to Halsbury this rule is an application of the doctrine ’that a person may not approbate and reprobate’ (13 Halsbury, para 508)....In other words, to allow a party, who takes a benefit under such an order, to complain against it, would be to permit a breach of faith." It may be noted that Their Lordships held in that case that the benefit that was received by the appellants was of withdrawing the pre-emption price and that such a benefit was not de hors the decree and therefore, the appellant could not be denied the statutory right to appeal. However, there is no doubt that Their Lordships approved the statement of law that parties are not entitled to take a benefit such as receiving costs which would tantamount to adopting the order and then challenging the order. 8. Shri Sen the leaned Counsel for the appellants, submitted that the appellants cannot be said to have received the benefits under the order, :8: merely because they have accepted the cheque. According to the learned Counsel the appellants, could be said to have received the benefits only if they had encashed the cheque, apart from accepting. It is not possible to accept the contention of Shri Sen. The intention of the parties in such a matter is crucial. It is clear that the respondents paid the costs imposed on them by way of a cheque which the appellants accepted and retained without demur. There was absolutely no attempt on the part of the appellant to return the said cheque. In fact, they proceeded to file an appeal about two months after receiving the costs by way of cheque. It is obvious that the appellants intended to receive the benefits, and in fact did so, under the order setting aside the exparte decree. That apart, there seems to be little doubt that receiving a cheque amounts to a conditional acceptance of payment. In Commissioner Commissioner Commissioner of of of Income Tax,Bombay South v. Messers Ogale Glass Income Tax,Bombay South v. Messers Ogale Glass Income Tax,Bombay South v. Messers Ogale Glass Works Works Works Ltd Ltd Ltd., reported in AIR 1954 SC 429, the Supreme Court relied on Byles on Bills, 20th Edition P. 23 and the position is summarised pithily as follows:- "A cheque, unless dishonoured, is payment." :9: Accordingly their Lordships concluded as follows:- " In the case before us none of the cheques has been dishonoured on presentation and payment cannot, therefore, be said to have been defeated by the happening of the condition subsequent, namely dishonour by non-payment and that being so there can be no question, therefore, that the assessee did not receive payment by the receipt of the cheques." The payment thus takes effect from the delivery of the cheque but may be defeated for failure of the condition i.e., non payment on maturity. We thus have no hesitation in coming to the conclusion that the appellants have received the benefits of the order and by accepting the cheque towards the costs of Rs.15,000/- from the respondents and therefore, are not entitled to maintain the appeal in view of the observations of the Supreme Court in Bhau Ram V. Bhau Ram V. Bhau Ram V. Baij Baij Baij Nath Sing and others, Nath Sing and others, Nath Sing and others, reported in AIR 1961 S.C. 1327. :10: 9. In the result the appeal is dismissed. There shall be no order as to costs. (S.A.BOBDE, (S.A.BOBDE, (S.A.BOBDE, J.) J.) J.) ( A.A. SAYED, J.) A.A. SAYED, J.) A.A. SAYED, J.)