1. One Shadi Lal was the purchaser of a usufructuary mortgage which had been executed by Lala Inder Sahai, father of Munshi Jagdamba Sahai, in favour of a third party. Shadi Lal instituted a suit for recovery of Rs. 14,000 in enforcement of this mortgage. The suit was directed against Jagdamba Sahai, Uma Sahai alias Lallan, Champa Kuer and many others. It was prayed that the amount be realized by sale of zamindari shares in Jamb Nagla and Maheshpur and of a house in mohalla Barahmanpuri in the city of Bareilly. The defendants appealed from this decree and their appeal was numbered and registered as No. 391 of 1923. During the pendency of the appeal, Shadi Lal applied for and obtained a final decree. This decree was put into execution and the three aforesaid properties were sold and purchased by Shadi Lal himself. The house in Barahmanpuri was purchased by him, on 27th January 1925, and Shadi Lal was put into formal possession of the house, on 1st May 1925.
2. On 10th November 1926, this Court varied the preliminary decree passed by the trial Court and reduced the amount to Rs. 7,000 and directed that the said amount was charged upon only one of the properties, namely, Janib Nagla and not the other two, namely Meshpur and the house in Barahmanpuri.
3. On 21st December 1926, Jagdamba Sahai alias Lal Bahadur moved an application under Section 144, Civil P. C, for being restored to possession of the house. This application was followed by an application made by Mt. Sarup Rani on similar lines which was made on 11th May 1927 and in which she stated that the house had been purchased by her mother Sukhdei and that upon the death of the mother it had devolved upon her and that Jagdamba Sahai had nothing to do with it.
4. The Court below accepted the contention of Mt, Sarup Rani and has passed a decree for the restoration of possession of the house by Shadi Lal to Mt. Sarup Rani.
5. It was contended by Shadi Lal that the application under Section 144, Civil P. C, was incompetent. It was argued that the defendants not having filed an appeal from the final decree and the property having been sold in execution of the said decree, no application for restoration of possession could be made under Section 144, Civil P. C, because the final decree had neither been varied nor reversed. This contention was overruled and rightly overruled by the Court below. Where the preliminary decree [has been varied or reversed by the appellate Court, it follows that the final decree passed thereon and all the execution proceedings, which have taken place in pursuance of the final (decree, fall through and that there could be no necessity of filing an appeal [from the final decree. Reliance has been placed upon the decision of the Privy Council in Ram Golam Sahu v. Barsaii Singh  36 Cal. 336. The facts of this case are toto caelo different. The preliminary decree was strictly speaking not reversed by the appellate Court. The amount of the mortgage money for which the decree was passed by the trial Court was increased by the appellate Court. This ruling therefore does not in any way militate against our view.
6. The defendants appear to have made an application for setting aside the auction sale under Order 2.1, Rule 90, Civil P.C. This application was dismissed and the sale confirmed. It has been argued that where the sale has been confirmed, no application under Section 144, Civil P. C, can be entertained, because it would be to nullify the injunction contained in Order 21, Rule 92, Civil P.C. Section 144, Civil P. C, prescribes a remedy which is separate from and independent of the remedy which was open to a [person under Order 21, Rule 90, Civil P.C. This is the view of the Court below. We are of opinion that this view taken is sound and we entirely agree with it. Shadi Lal claims to recover a sum of Rs. 1,400 for the expenses incurred in the repairs of the house. We have not been taken through the evidence in this case, but after hearing Mr. Pathak for the appellant we have no hesitation in upholding the conclusion arrived at by the Court below that Shadi Lal has failed to make out that Rs. 1,400 or anything near Rs. 1,400 had been spent by him in the repairs of the house. All that he had spent was about Rs. 300. He has remained in possession of this house from 1st May 1925 right up to the date of the decision of the Court below. The Court below was justified in holding that even upon the most conservative view, the rent of the house could not be less than Rs. 12 per month. Under these circumstances the amount laid out by Shadi Lal for the repairs of the house has been amply repaid.
7. The respondents have filed a cross-objection. We are of opinion that there is no force in this cross-objection. We accordingly dismiss this appeal with costs and also the cross-objection with costs which will include fees on the higher scale.