William Ayling, Offg. C.J.
1. Appellants in this case are purchasers in court auctions, who have been deprived of their properties owing to the cancellation of the sales and who now seek restitution of the sums paid by them which have been rateably distributed among certain persons (respondents) holding decrees against the judgment-debtors. The District Munsif directed these persons to refund to appellant the amounts received by them; but his order was set aside on appeal to the District Judge, who held that appellants were not entitled to restitution either under Section 144 of the Civil Procedure Code or with reference to the Court's inherent powers under Section 151 of the Civil Procedure Code.
2. The facts of the case so far as they are necessary for disposal of these appeals are these :--The properties were attached and brought to sale in execution of the decree in Small Cause No. 274 of 1911 on the file of the Court of the Subordinate Judge of Madura against one Mariyappan Chetti. His sons who on his death were made parties in execution, presented a claim petition (E. P. No. 539 of 1912) under Order 21 Rule 58 to the effect that the properties were trust properties in their hands and not liable under the decree. This was dismissed; and the sales proceeded. The sons however filed a suit (Original Suit No. 58 of 1914 on the file of the court of the Subordinate Judge of Ramnad) and ultimately obtained a decree declaring that the properties were trust properties and not liable to be proceeded against or sold in execution of the decree in Small Cause Suit No. 274 of 1911. They then obtained re-delivery of the properties with mesne profits under Section 144 of the Code of Civil Procedure. The first question is whether appellants, the auction-purchasers, are also entitled to avail themselves of its provisions.
3. In my opinion the District Judge has rightly held that they are not, looking to the terms of the section. Restitution can only be granted under Section 144 on the application of a party to the 'decree varied or reversed.' What was this decree ?. The District Munsif who decided in appellant's favour did so on the footing that it was the order for attachment and sale, and that this order was superseded by the decree in O.S. No. 58 of 1914. The appeal was also argued before us on this basis. But the appellants were no parties to the order for sale; nor were they parties to the order dismissing Execution Petition No. 539 of 1912, which might be suggested on the alternative as the 'decree varied or reversed '. The learned Vakil has argued that they may be treated as the representatives of the judgment debtors on the strength of the Full Bench Judgments in Veyindramuthu Pillai v. Maya Nadan 38 M.L.J. 32. F.B.. It may be remarked that these judgments did not lay down that the auction purchaser should in all circumstances, and for all purposes be entitled to pose as the representative of the judgment debtor. But apart from this, such a character would be of no avail to appellants here. As representatives of the judgment debtors who were the successors in interest of Mariappan Chetty they would have no claim either in law or equity to recover the amounts paid over by the Court to the respondents in satisfaction of the decrees which the latter had obtained against Mariappan Chetty and which were binding on his sons.
4. As an alternative, it is argued that the order of the District Munsif may be supported as one passed in the exercise of the inherent powers of the Court under Section 151 of the Code of Civil Procedure. Reliance is placed on a decision of a Bench of the Calcutta High Court in Nepalchandra v. Ramendra Nath (1914) 24 I.C. 384 in which refund of the price paid was directed to be made by a decree holder to an auction purchaser, whose sale was set aside after confirmation, and who had in consequence lost the properties purchased. The decree holder in that case was the person responsible for wrongfully bringing the properties to sale. In the present case refund is asked for from persons who had nothing to do with causing the auction sale, but merely profited by it, in the way of rateable distribution under the orders of the Court. This distinction seems to me to be of considerable importance in connection with the exercise of extra-ordinary powers which are of a purely equitable and discretionary nature. In the present case it is pointed out by Mr. Jayarama Iyer for respondents that the persons who in equity should reimburse the auction purchasers are the judgment-debtors. Respondent's decrees against them have been recorded as satisfied by the payment of the sums sought to be recovered, and the decrees themselves are now long time-barred. This is not denied. The District Munsif's order therefore only compensates appellants for the loss of their money at the expense of equally innocent parties and it certainly seems to me that the extraordinary powers conferred by Section 151 for the ends of justice and to prevent abuse of the process of the court, should not be invoked where the equities are so evenly balanced.
5. The learned vakil for respondents has quoted several cases Neelaveni v. Narayana Reddi 37 M.L.J. 599. (F.B.) Mohideen Ibrahim v. Mohamed Meera Levai : (1912)23MLJ487 and Gopisetti Narayanasami Naidu v. China Venkataraju (1916) 4 L.W. 400 as authorities against the application of Section 151 of the Code of Civil Procedure to the present case, I do not propose to discuss them, because I feel strongly that section should not be invoked to cover an order which only sets right one injustice by the infliction of another, or as it is said, robs Peter in order to pay Paul.
6. I would dismiss the Appeals with costs and also the Revision Petitions without costs.
Venkatasubba Rao, J.
7. Two questions have been argued before us. The appellant contended first that his application came within the terms of Section 144, Civil Procedure Code. He argued secondly that if Section 144 did not apply, we should, in the exercise of our inherent power, grant him relief under Section 151 of the Code.
8. A decree was passed in S. C. Suit No. 274 of 1911, Madura Sub-Court, against one Mariappan Chetty, and he having died, his sons were made parties in execution proceedings. The decree holder then attached certain items of properties, and Mariappa's sons preferred an objection under Order 21, Rule 58, on the ground that the properties attached were trust properties. The objection was disallowed and the properties were sold and the appellant purchased them in court auction. The appellant paid the purchase money into court, and the money so paid was rateably distributed among several decree-holders including the decree-holder who had brought the property to sale. In the mean time Mariappa's sons filed a regular suit to set aside the order made under O, 21, R. 61, disallowing the objection above referred to. The suit was presumably filed under Order 21, R. 63, and by a decree made in that suit the contentions of Mariappa's sons that the properties were trust properties in their hands was upheld. Thereupon they made an application to the court for the recovery of possession of the properties sold from the appellant and obtained an order for possession and recovered the properties from the appellant.
9. The appellant now says that as he has been deprived of the properties, he is entitled to get back the amount he paid into Court from the various decree holders.
10. I shall first deal with the question : does the application lie under Section 144 Section 144 cannot apply unless there is a decree that has been subsequently reversed or varied. It is clear that the decree in S. C. S. No. 274 of 1911 has neither been varied nor reversed. It has therefore been argued on behalf of the appellant that the order of the Court disallowing the objection of judgment-debtors was subsequently reversed by the decree in the regular suit, and that the order that was so reversed is a decree. I am unable to accept this contention. The judgment-debtors' objection to the attachment on the ground they held the properties as trustees was made under Order 21, Rule 58 and, an order made upon this objection under Order 21, R. 61 is not a decree under Section 2, Civil Procedure Code and is not therefore appealable (See Ramathan v. Levvai (1900) I.L.R. 23 Mad. 195 (F.B.) ; also Badruddin v. Abdur Rahim I.L.R(1908) . Mad. 125.) It will be further noticed that the order that was subsequently varied was the one made upon the claim petition and not an order that was passed on the execution petition, for attachment and sale of the properties. The District Munsif who ordered restitution in favour of the appellant assumed that the order that was subsequently varied amounted to a decree and held that Section 144 was applicable. I am of opinion that his view is erroneous and that Section 144 does not apply.
11. There is a further reason for holding that Section 144 is not applicable. Assuming that the order which was reversed was a decree, the appellant was not a party to the order which disallowed the objection of the judgment-debtors. The applicant under Section 144 must be a 'party entitled to any benefit by way of restitution.' It is not sufficient that he is merely a person entitled to the benefit. That this is the right construction, will appear from the circumstances that a later portion of the section refers to 'the parties' being placed 'in the position which they would have occupied but for such decree or such part thereof as has been varied or reversed.' It is therefore necessary to examine whether the appellant was a party to the order reversed. It has been argued on his behalf that though the auction purchaser was not as such a party to the order he must be deemed to be a party as the legal representative of the judgment debtors. I am unable to accept this contention and I hold for the reasons stated by His Lordship the Officiating Chief Justice with which I respectfully agree, that the appellant is not the legal representative of the judgment-debtors.
12. The appellant has further contended that it is sufficient that the applicant was a party to the reversing decree though he was not a party to the decree reversed; in other words, that the fact that he was a party to the regular suit filed under Order 21, Rule 63 confers upon him the right to apply under Section 144 although he was not a party to the proceeding under Order 21,. Rule 58. This contention, in my opinion is absolutely untenable. The words of the section are incapable of being construed in this manner.
13. The only question that remains to be decided is whether in the circumstances the appellant can invoke the provisions of Section 151 in his favour. The respondent has contended before us that there was no warranty of title at a court sale, and the appellant having purchased the right, title and interest of the judgment-debtors cannot get back the amount he paid into court on his being deprived of the possession of the property which he purchased. He has further contended that under Section 315 of the Code of Civil Procedure, 1882, the auction-purchaser had a right to receive back his purchase money when it was found that the judgment-debtor had no saleable interest in the property which was purported to be sold; but that under the corresponding rule of the Code of 1908 (Order 21, Rule 93) the auction purchaser does not possess such a right and the respondent therefore argues that the right of the auction purchaser to recover the purchase money having been specially conferred upon him by the Civil Procedure Code of 1882, and having been taken away by the Code of 1908, it must be assumed that in law the auction purchaser has no such right and that therefore the power of the Court under Section 151 should not be exercised for the purpose of conferring upon the appellant the rights which he does not possess under the law. I think it is unnecessary to decide this question as I am prepared to hold that the appellant cannot even otherwise invoke in the circumstances of the case the provisions of Section 151 for his benefit. It has been pointed out to us that the decrees against the judgment-debtors have become time-barred. If restitution is therefore ordered the decree-holders will be deprived of the fruits of their decree and this hardship will result to them although it is admitted that no blame attaches to them In this view the cases cited by the appellant, Kedar Nath v. Jai Bermha 37 I.C. 863 and Nipalchandra v. Ramendra Nath (1914) 24 I.C. 384 do not apply.
14. I would therefore dismiss the appeals with costs and also the revision petitions without costs.