BEZWADA SUNDERARAMA REDDI Vs. ENUGA RAGHAVA REDDI

JUDGEMENT

(1.) Appellants in this case represent the decree holders in O.S. No. 24 of 1911 on the file of the Nellore District Court. Respondents are the judgment debtors. The decree was for Rs. 5,663-6-8, with subsequent interest at 9 per cent per annum. It was confirmed on appeal to this Court with the single modification that the rate of subsequent interest was reduced from 9 to 6 per cent. While the appeal was still pending 19 items of property belonging to the Respondents were brought to sale in execution of the decree, the amount due being notified as Rs. 7,695. The correct amount calculated according to the decree of this Court was Rs. 7,495. The total sale proceeds aggregated to Rs. 10,367 and of the 19 items, 5 items were purchased by appellants for Rs. 2,719.

(2.) Respondents applied under Section 144, Civil Procedure Code, for restitution by re- delivery of these five items, cancelling the sale and the District Judge passed an order in their favour, against which the present appeal is preferred.

(3.) In our opinion the order is not justified by the terms of the section. The latter runs thus : (l) Where and in so far as a decree is varied or reversed, the Court of the first instance shall, on the application of any party entitled to any benefit by way of restitution or otherwise cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree or such part thereof as has been varied or reversed; and, for this purpose, the Court may make any orders including orders for the refund of costs, and for the payment of interest, damages, compensation and mesne profits, which are properly consequential on such variation or reversal. (2) No suit shall be instituted for the purpose of obtaining any restitution or other relief which could be obtained by application under Sub-section (1). Its object is clearly to enable the court to place a party who has been prejudicially affected, by a decree, which has been varied or reversed in his favour in the same position as he would have occupied if the decree had stood originally in the same terms, as it stood after the variation or reversal.