Del HC | Not allowed to blow hot and cold in same breath: Party who knowingly accepts benefits of an order not permitted to assail it later

Delhi High Court: The Bench of Vinod Goel, J. dismissed a revision petition filed against the order of Civil Judge (II), Central Districts, Tis Hazari courts by which respondent’s application under Order 9 Rule 1 read Section 151 CPC was allowed.

Respondent was a defendant in the subject civil suit. He filed an application before Civil Judge for setting aside the ex-parte judgment and decree passed in the suit. The application was allowed by order of Civil Judge which was challenged by the petitioners (plaintiffs) in the present revision petition.

J.H. Jafri, Advocate for the petitioners admitted that the cost of Rs 10,000 subject to which the ex-parte judgment and decree was set aside was accepted by the counsel appearing for the petitioner.

Noting such facts, the High Court was of the view that, “the petitioners cannot ‘blow hot and cold’, ‘fast and loose’ or ‘approbate and reprobate’. Where the petitioners have knowingly accepted the benefits of an order, they cannot be permitted to assail the same. This rule is applied to do equity.” In the present case, as the petitioners had already accepted the costs, therefore they were estopped by their act, conduct and acquiescence to continue the petition. The revision was dismissed. [Mustaqeem v. Faiyaz, 2019 SCC OnLine Del 6751, dated 21-1-2019]

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