K.C.Das Gupta, J. - (1.) The appellants who are the plaintiff's in a suit for removal of the defendant from the shebaitship of the Idols Sri Sri Iswari Hanseswari and others, applied for the appointment of a receiver pending the suit. That application was rejected by the trial court on the 18th of August, 1951. An appeal was preferred against this order of refusal to the District Judge, Hooghly, and on the 5th of April, 1952, the learned Subordinate Judge to whom the appeal had been transferred for disposal passed an order allowing the appeal "on consent". The defendant prayed for review of this order allowing the appeal and on the 22nd of May, 1952, the learned Judge passed the following order : "The review petition will be allowed and the appeal will be restored to file after setting aside the order passed by me on 5th April, 1952, if the petitioner puts in the entire costs of the opposite party together with the pleader's fee of Rs. 16/- on or before 31st May, 1952. In default, the application shall stand dismissed with costs and pleader's fee Rs. 16/-." This amount was put in before the 31st of May, 1952 as directed. On the 11th of June. 1952, a payment order for this amount was passed in favour of the plaintiffs.
(2.) In this appeal which is against the conditional order under which the review petition was allowed and the appeal was restored to file by the Judge's order of the 23rd of May, 1952, a preliminary point has been raised on behalf of the respondent that the appellants having applied for payment and received an order for payment of the costs mentioned above, are precluded from appealing against that order.
(3.) The principle that has to be applied in these cases was laid down by Mookerjee, J. in the case of Manilal v. Harendra Lal, 12 Cal LJ 556 (A), in these words : "A party who has adopted an order of the Court and acted under it, cannot, after he has enjoyed a benefit under the order, contend that it is valid for one purpose and invalid for another." In that case a prayer for amendment of the plaint was allowed on condition of payment of Rs. 150/-as costs. The costs were paid at once and were received by the defendants on protest. On appeal by the defendants against this order granting an amendment of the plaint a preliminary ground was urged that as the defendants acquiesced in the order of the Court in so far as they received the adjournment costs, they could not be permitted to question the propriety of the order. This contention was rejected by the Court in view of the fact that the defendants were compelled to accept payment of the costs under orders of the Court and they did so under protest, and it was pointed out that the order of the Court was so framed as to make it practically obligatory upon the defendants to receive the money. Mookerjee, J. observed further : "If the learned Judge had directed the costs to be paid into Court to the credit of the defendants and they had voluntarily withdrawn the sums deposited, they might have been debarred from questioning the validity of the order.";