IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE TWENTY FOURTH DAY OF MARCH TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL REVISION PETITION No.3652 of 2010 BETWEEN Smt. B. Shakuntala and two others. ... PETITIONERS AND T. Palani Swamy. ...RESPONDENT Counsel for the Petitioners: MR. A. SURYANARAYANA Counsel for the Respondent: MR. M.V.S. SURESH KUMAR The Court made the following: ORDER: This revision is at the instance of the plaintiff in O.S.No.1495 of 2001 aggrieved by the order dated 08.06.2010 passed by the trial Court allowing the respondent’s application being I.A.No.2782 of 2004 filed under Order 9 Rule 13 of the Code of Civil Procedure, 1908. 2. By the aforesaid order, the ex parte decree passed by the trial Court in favour of the petitioners on 03.07.2004 was set aside subject to the respondent paying costs of Rs.5,000/- to the petitioners on or before 15.06.2010. 3. While the petitioners have questioned the aforesaid order in this revision petition, it appears that the costs awarded in favour of the petitioners were paid by the respondent in compliance with the order impugned and the said costs appear to have been received by the petitioners without recording any protest. A preliminary objection is, therefore, raised by the learned counsel for the respondent that the petitioner having acquiescent in the impugned order cannot question the same. He placed reliance upon the latest judgment of the Supreme Court in RATTAN CHAND v. MORI (D) BY LR[1] particularly, para 5 thereof, which is as follows: “5 . The appellants contend that the abatement ought not to have been set aside after an enormous delay. But we find from the order dated 1.11.2001 that the application was allowed subject to payment of Rs.2,000/- as costs. The learned Counsel appearing for the appellants herein stated that 50% of the costs may be given to the High Court Bar Association for purchase of books and the remaining 50% be paid to the Advocates Welfare Fund of the Bar Council, Himachal Pradesh. The costs were accordingly paid and disbursed. In view of the fact that the Counsel for the appellants herein specifically agreed and suggested the manner of payment of costs, he is deemed to have agreed and accepted the order dated 1.11.2001 by receiving the cost. Hence, it is not open to the appellants to subsequently challenge the order dated 1.11.2001 which permitted the legal representative of the deceased Mori Devi to come on record in her place and pursue the restored second appeal.” Learned counsel for the respondent also places reliance on the following decisions: KORVATI SUBBAMMA v. PINNAPUREDDY SUBBAIH[2]; METAL PRESS WORKS LTD. v. GUNTUR MERCHANTS COTTON PRESS CO. LTD.[3]; B. UMAMAHESWARA RAO v. GOVERNMENT OF ANDHRA PRADESH REP. BY DISTRICT COLLECTOR, KRISHNA[4] and G.P. SRIVASTAVA v. R.K. RAIZADA[5]. 4. Learned counsel for the petitioners submits that the costs were received without protest without realizing that the same would disentitle the petitioners from questioning the impugned order. He also states that not only the suit was decreed but also in the execution proceedings, the said decree has already been executed and a registered sale deed in favour of the petitioner was executed by the Court. The impugned proceedings to set aside the decree are taken up thereafter when no proceedings are pending before the trial Court. Learned counsel, therefore, seeks to make distinction from the principle enunciated in RATTAN CHAND’s case (1 supra) and the facts of the present case. 5. I am afraid, no distinction can be lawfully made merely on the basis of the facts of the case, as a principle of law, the acquiescence by accepting the costs awarded on the part of the petitioners clearly disentitles them from questioning the order on the ground of estoppel by conduct as well. In view of the settled legal position, the revision petition cannot be entertained at the instance of the petitioner. The civil revision petition is accordingly dismissed. However, the petitioner is at liberty to contest the suit on all permissible grounds as per law. There shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J March 24, 2011 DSK [1] 2011 (2) ALD 14 (SC) [2] 1958 ANWr (1) 542 [3] 1975 APLJ (1) 283 [4] 1977 ANWr (1) 392 [5] AIR 2000 SC 1221