P.V. Rajamannar, C.J.
1. On the respondent's application under the Madras Buildings (Lease and Rent Control) Act, 1946, the Additional Rent Controller, Madras, passed on 30th March, 1948, an order for eviction against the petitioner. The respondent took out proceedings to execute the order and went with the bailiff to take delivery of the premises on 22nd April, 1948. On that day the petitioner passed a letter to the respondent in the following terms:
As you have brought a warrant of possession against me in the above E.P. for the ground-floor No. 93, Thagaraja Rao, Thyagarayanagar, I request you time for today and I assure you that I will give complete possession of the said place by to-night.
2. The petitioner however did not give possession but filed an appeal and obtained an order for stay of delivery on 24th April, 1948. When the appeal came on for hearing before the Third Judge of the Court of Small Causes, the respondent raised a preliminary objection that the appeal was not maintainable because of the above letter. The learned Judge upheld the objection and dismissed the appeal as not maintainable. He held that in that letter the petitioner had accepted the order of the Rent Controller and that it was not open to him thereafter to impeach it by filing an appeal, in other words, that he could not be permitted to approbate and reprobate. The petitioner seeks a writ of certiorari from this Court to quash the order dismissing his appeal.
3. Prima facie there is nothing in the letter expressly waiving the right of appeal, a right which the petitioner was entitled to under Section 12 of the Act. We are-unable to hold that there is any implied undertaking not to file an appeal which can be gathered from the language of the letter. The petitioner was faced with a warrant of possession and the prospect of being turned out of the house unceremoniously by the bailiff, He therefore requested time till the night to surrender possession. Merely because he prayed for and obtained time to comply with the order of eviction passed by the Rent Controller it cannot be said that he had elected to treat the order of the Rent Controller as final or that he had abandoned his right of appeal.
4. Mr. Suryanarayana, the learned advocate for the respondent, strongly relied upon the decision of the Court of Appeal in Bartlam v. Evans (1936) 1 K.B. 202. The facts of that case were as follows. The defendant had certain betting transactions with the plaintiff who was a bookmaker which resulted in the defendant becoming indebted to the plaintiff in a certain sum. A suit was filed for the recovery of that sum and judgment in default of appearance by the defendant was signed in the action on 24th September, 1935. On the same day plaintiff's solicitor wrote to the defendant informing him that judgment had been obtained against him for a certain sum together with costs and asking for payment of the total amount to obviate the necessity of execution. On 26th September, 1935, the defendant approached the plaintiff and requested him to ask his solicitor to give him time in which to pay the amount due under the judgment. In his letter, he, inter alia said:
I have never refused to pay him (plaintiff) but have not had any income to do it with owing to bad trade....At the moment I have nothing and no assets and know he does not want to lose his money.
5. The plaintiff's solicitor replied that in the circumstances he was prepared to let the matter stand over for seven days and that if he did not receive payment at the expiration of that period, proceedings would be taken to enforce the judgment without further notice. The defendant therefore took out summons praying that the judgment be set aside and that he should be at liberty to defend. The Master dismissed the application but the learned Judge sitting in Chambers allowed the appeal from the Master and ordered that the judgment be set aside. The plaintiff thereupon appealed to the Court of Appeal. The Court of Appeal, by a majority, Greer, L.J., dissenting, allowed the appeal. Slesser, L.J., held, after referring to the correspondence which passed between the defendant and the plaintiff's solicitor, that the defendant having approbated the judgment in order to obtain the benefit of delay, he should not be heard to say that it should be set aside. According to him the case was 'nearer an estoppel by record than an estoppel in pais.' Scotts, L.J., agreed with Slesser, L.J., that the appeal should be allowed but he based his decision on the ground of election. He thought that the correct inference on a consideration of the evidence was that the defendant had elected to treat the judgment as binding and therefore he should be treated as having abandoned his right to apply to set it aside. Greer, L.J., who dissented, definitely took the view that the principle of approbate and reprobate could have no application to the case because the defendant took no benefit whatever from the judgment which was entirely against him. He also held that there could be no estoppel on the acts. What the defendant promised was that he would perform that which he was under legal obligation to perform having regard to the existence of the judgment which had not been set aside. It will thus be seen that the three learned Lord Justices who heard the appeal took practically three different views of the matter, and to add to this divergence of opinion, there is the further fact that the nature of the correspondence in that case is entirely different from the nature of the letter addressed by the petitioner in this case-when faced by the warrant of possession.. We are therefore unable to derive much assistance from the judgment of the Court of appeal for a decision on the facts of this case.
6. The learned Advocate for the respondent referred us to cases in Anant Das v. Ashbumer and Co. (1876) I.L.R. 1 All. 267 and Protab Chandra Das v. Arathoon I.L.R. (1882) Cal. 455 in which in consideration. of a concession or indulgence from the decree-holder the judgment-debtor agreed not to file an appeal. They can have no bearing whatever on the facts of this case.
7. As in our opinion the petitioner did not elect by his conduct to treat the order of the Rent Controller as final and had not either expressly or impliedly abandoned his right of appeal, the learned Judge of the Court of Small Causes was clearly in error in holding that the appeal was not maintainable. His order is therefore quashed with the result that the appeal will be restored to file and disposed of according to law. The petitioner will be entitled to his costs.