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.
4. To put it in another way. The prejudice to be removed by restitution must be the result of the erroneous terms of the original decree. Now in the present case, respondents may fairly claim that as things turned out the decree amount might have been realised by the sale of the 14 items of property other than those of which they now claim re-delivery, if the items had been sold in a different order. The last item No. 19 fetched Rs. 3600, the amount realised by the sale of the preceding items being only Rs. 6757 which was nearly Rs. 1000 under the decree amount. It was therefore necessary to proceed with the sale of items 19. If the five items they claim had been put last in the list, the decree amount might have been realised without selling them, But such prejudice as respondents have suffered is due not to the variation in the decree, but to the terms of the sale order regulating the order in which the items were to be sold, and it is not alleged that respondents took any exception to this either at the time of fixing sale proclamation or at the time of sale.
5. Whether the amount to be realised was Rs. 7,695 or Rs. 7,495 did not affect the necessity of putting up the last item of sale. In other words, their position as regards the sale was in no way affected by the variation in the decree.
6. It was argued that any reduction in the amount of a decree affects the position of the judgment debtor, inasmuch as it renders it easier for him to satisfy the decree and prevent the sale of his property in execution. No doubt where the reduction is large this may be so; and whether it is so or not, must be a question of fact. But in the present case the reduction is so slight that it cannot be seriously contended that respondents could have satisfied a decree for Rs. 7,495 but could not raise the extra Rs. 200 and no such allegation has ever been made.
7. Of the cases relied on in support of the District Judge's order the first is Syed Nathadu Saheb v. Nallu Mudaly I.L.R(1903) . Mad. 98 . The facts there were very similar to those before us; and if it had been decided under the present Civil Procedure Code, we should have felt bound to refer the matter to a Full Bench. Under the old Code (S. 583) the Court was not limited, in granting such restitution as it thought fit, to placing the party in the same position as he would have occupied but for the variation or reversal of the original decree. Section 144 of the present Code gives, as has been pointed out, much more restricted power. The decision in that case may be distinguished on this ground and although with all respect we feel doubtful as to whether any equity in that case called for the decision arrived at, we do not feel bound to say more about it.
8. The Privy Council decision in Zain-ul-Abdinkhan v. Muhammad Saghar Alt Khan 15 I.A 12. (P.C.) which was relied on in Syed Nathadu Sahib v. Nallu Mudaly I.L.R. (1903) Mad. 98 dealt with a case in which the Court sale sought to be set aside would have been altogether unnecessary, under the modified decree the amount found due having been realised by an earlier sale, Such a case of course, stands on a different footing both in equity and with reference to the provisions of Section 144.
9. Chandan Singh v. Ramdeni Singh I.L.R. (1904) Cal. 499 is another case like Syed Nathadu Sahib v. Nallu Mudaly I.L.R. (1903) Mad. 98 under the old Code, and although Sagore Mandal v. Mafijuddin Sardar (1919) 24 Cal. W.N. 50 is under the present Code, it simply follows the earlier case without reference to the change in wording in the Code.
10. We must therefore set aside the order of the District Judge and direct respondents to pay appellants' costs in both courts.