Oldfield and Tyrrell, JJ.
1. The appellant was a successful plaintiff in a preemption suit, the first Court having decreed the property to him on condition of his paying for it the price of Rs. 1,098-11-0. The first appellate Court raised this sum to Rs. 1,139-15-6; and on the 6th July 1880, the plaintiff paid this sum into court. The defeated party drew it out on the 19th August 1881. But meanwhile the High Court in second appeal decreed the enhanced sum of Rs. 2,400 to be the true price payable by the pre-emptor, who, finding it more than he cared to give, let the time limited for payment of the excess difference elapse without paying it. On the 25th May 1883, the plaintiff applied to the Subordinate Judge in the department of execution of the decree for the refund of his deposit, which had been drawn and retained by the other side. His application was granted, and the defendant was ordered to refund on the 4th July 1883. But the latter carried the case in appeal to the District Judge, who, on the 15th January 1885, confirmed the Subordinate Judge's orders. Meantime the latter had suspended execution of the order, pending the result of the appeal; and the order of the 4th December 1884, removed the application temporarily from the 'pending' list. On the 19th February 1885, the plaintiff applied to the Subordinate Judge to enforce the refund; and an, appeal by the defendant in the last resort to the High Court was dismissed on the 25th May 1885, the orders of the local Courts being confirmed. But the Aligarh District Judge has now pronounced the plaintiff's remedy to be barred by limitation. Hence this appeal. It is argued that the application of the 19th February 1885, is only a revival of the application of the 25th May 1883, which was within time; and the contention appears to be sound and sustainable. But apart from this consideration, it is clear that the application for the refund is not time-barred. The plaintiff-applicant is, in the sense of Section 583 of the Civil Procedure Code, 'a party entitled to a benefit by way of restitution under the decree' of the appellate Court made on. the 27th July 1881. It was a necessary incident of that decree, which declared the plaintiff's deposit of Rs. 1,139-15-6 to be insufficient to purchase the property under pre-emption, that he was entitled in consequence to restitution of this sum, which he had paid as the sufficient price under the decree of the-Lower Appellate Court, and the plaintiff was competent to move the local Court to execute the appellate decree in this respect in his favour ' according to the rules prescribed for the execution of decrees in suits'--Section 583 supra. This he did in May 1883, by an application made according to law in the proper Court in the sense of Article 179 of the Limitation Act. And his present application to the same effect made on the 19th February 1885, being within three years of that application, is within time. The order of the Subordinate Judge therefore, directing execution to be made in the plaintiff's favour, must be restored, that of the District Judge being set aside, and this appeal is allowed with all costs.