Venkataramana Rao, J.
1. The question raised in this appeal is whether an application for restitution made by the appellants for recovery of a sum of money deposited by them into Court for setting aside a sale under Order 21, Rule 89 of the Code of Civil Procedure is sustainable. The plaintiff-respondent in this appeal filed a suit O.S. No. 440 of 1917 to recover a certain annuity from and out of the property in the Schedule annexed to the plaint filed by him. The properties were owned by the third defendant from whom the first defendant purchased; and he in turn sold them to the second defendant. A decree was passed in the suit in favour of the plaintiff directing among other things payment of the amount by sale of the properties Pending the suit the said properties appear to have been purchased by the appellants from the second defendant. In consequence of the said decree in the above suit the properties were brought to sale and purchased by the plaintiff-decree-holder. The appellant made an application to set aside the sale under Order 21, Rule 89, Civil Procedure Code, by depositing the amount of the decree into Court and the sale was accordingly set aside. This was in or about June, 1921. Against the decree in the said O.S. No. 440 of 1917 an appeal was preferred by the defendants and the decree in favour of the plaintiff was reversed in A.S. No. 186 of 1920 on the file of the District Court, Salem. This was on the 2nd of November, 1921. In consequence of the said decision the appellants filed E.A. No. 74 of 1922 on the 12th January, 1922, for restitution of the monies they deposited into Court. The application was dismissed on the 4th April, 1922. But on appeal the said order was reversed and the appellants were declared entitled to restitution. This was in or about 7th April, 1924, and against this order C.M.S.A. No. 2 of 1925 was preferred to the High Court. Pending these proceedings against the decision in A.S. No. 186 of 1920, S.A. No. 276 of 1922 was preferred to the High Court by the plaintiff. On 12th February, 1925, the High Court reversed the decree of the appellate Court in A.S. No. 186 of 1920 and restored the decree in O.S. No. 440 of 1917. Against this decree a Letters Patent Appeal was preferred being L.P.A. No. 98 of 1925 on the file of the High Court, and on 29th November, 1927, the Letters Patent Appeal was allowed and the result of the decision therein was that the decree of the appellate Court in A.S. No. 186 of 1920 was restored and the plaintiff's suit dismissed. It may also be stated that the C.M.S.A. No. 2 of 1925 was also disposed of and the same was dismissed on the same date. On the 19th November, 1928, the decree in the Letters Patent Appeal was amended as the cause-title was found to be defective in that the names of the legal representatives of the first defendant's representative were not in the cause-title of the decree as drafted but the name of the first defendant, a dead man, was retained in the decree as originally drafted. Within three years from this date the appellants filed E.A. No. 611 of 1931 claiming restitution of the amount deposited by them with interest. They prayed that the Court may be pleased to grant restitution and direct the plaintiff respondent to pay the petitioner the amount with subsequent interest. The District Munsiff dismissed the application on the ground that the application is unsustainable in that there was already an order for restitution made in E.A. No. 74 of 1922 and the same prayer cannot be asked for again, and further that there was 'no prayer for execution'. On appeal from this decision the learned District Judge summarily dismissed the appeal on the ground that an order for restitution had already been made and it is an executable order and further the Court must be moved in the appropriate way, and that is, by an execution petition. Against this order the present second appeal has been preferred.
2. It is contended by Mr. Sitarama Rao that both the lower Courts were wrong in the view they took, namely, that the appellants should have executed the order for restitution passed in E.A. No. 74 of 1922. It seems to me that Mr. Sitarama Rao is right in his contention. E.A. No. 74 of 1922 was filed by virtue of the decision in A.S. No. 186 of 1920. But the decision was upset in S.A. No. 276 of 1922. The result of the decision in the second appeal was that the appellants could not maintain successfully E.A. No. 74 of 1922 and the application must be deemed to have become infructuous. Till the decision in the Letters Patent Appeal established the rights of the defendants 1 and 2 the appellants could not have applied for restitution at all. It is only in consequence of the decree in the Letters Patent Appeal that their right to apply accrued. The appellants were therefore in order in filing the present application for restitution.
3. The next contention is whether the appropriate way of moving the Court was by an execution petition and not in the form of an application in the manner filed by the plaintiffs. The argument seriously pressed on behalf of the plaintiff-respondent in this case which apparently prevailed in the Courts below is this:--In a series of cases by which I am bound our High Court has consistently taken the view that an application for restitution is an application in execution of a decree and governed by Article 182 of the Limitation Act. The only way in which an application can be made is by way of an execution petition framed in accordance with Order 21, Rule 11, Civil Procedure Code. The present petition does not fulfill the requirements of Order 21, Rule 11, Civil Procedure Code, and it is defective in a material particular as it does not state in what way the assistance of the Court is sought, whether by arrest of the plaintiff or attachment of his properties, and the application was rightly rejected by both the Courts. It is no doubt true that our High Court has taken the view that an application for restitution is an application for execution of the decree whatever may be the view of the other High Courts, and though there is much to be said in favour of the other view. (Vide Sarojehhushan Ghosh v. Debendranath Ghosh I.L.R. (1931) 59 Cal. 337 Parmeshar Singh v. Sitladin A.I.R. 1931 All. 626.) The ground on which the application is said to be for execution of the decree is thus stated in Unnamalai Ammal v. Arunachalanf : (1917)33MLJ413 .
What is sought to be enforced is the legal obligation arising from the decree itself and not an independent obligation. It seems to us that we must treat the application as an application for execution of the decree.
And this also accords with the view taken by the Bombay High Court in Sayad Hamidalli v. Ahmedalli I.L.R. (1920) 45 Bom. 1137 where Sir Norman Macleod, C.J., says:
It is the decree of the appellate Court which entitles the successful appellant to get back something which he had been deprived of by the decree of the lower Court, under which the then successful party had actually received possession. In order, therefore, to get back what he has lost, the successful appellant must apply for execution of the order which entitles him to get back that possession.
4. But it is too much to argue from this that the application for restitution must strictly conform to the form prescribed for an execution petition and satisfy all the requirements of Order 21, Rule 11, Civil Procedure Code. It will be seen that under Section 144 before an order for restitution can be made the form and the manner of restitution and the relief which the Court would grant for giving the benefit of the decree to the person who seeks the restitution of the property which he has been deprived of, have to be determined by the Court. In my opinion the form of an execution petition would be unsuitable in mo-t cases. The actual amount to be restored will have to be determined; the Court will have to determine whether it will grant interest and, if so, at what rate; and if it is restoration <-,! mmovable property the Court may have further to determine whether mesne profits have to be granted or not. It may conditions will have to be imposed upon the party who seeks restoration. After determination as aforesaid it will be then open to the Court to give the appropriate relief which the nature of the case may require and which may accord with such determination. In meeting the view that an application for restitution could not in the nature of things be an application for execution because the form of an execution petition could not be appropriately thought of for an application for restitution, Courtney Terrell, C J., observes in Pathak Bhaunath Singh v. Thakur Kedar Nath Singh I.L.R. (1934) 13 Pat. 411 thus:
It is true that the procedure for dealing with them differs in some respects from the procedure for carrying out other decrees of the Court notably in the fact that such applications must be made in the Court of first instance. But such matters are not, in my opinion, the criteria of the nature of the remedy for judicial classification any more than geographical habitat or nomenclature are criteria of zoological genus. Under Section 144 the Court is bound as a matter of law to order restitution though the form of restitution may vary and it is by reason of the fact that the Court of first instance only is familiar with the circumstances of the case that as a matter of machinery it alone is given discretion to determine the form which the restitution may take. This fact does not, in my opinion, militate against the view that an application for restitution is an application in execution The re-arrangement in the new Code has, in my opinion, not affected the essential nature of the remedy which remains as before a remedy in execution though subject to a special procedure.
5. These observations clearly indicate that an application for restitution need not be by an execution petition as required by Order 21, Rule 11, Civil Procedure Code.
6. Mr. Sitarama Rao urges before me that even if the application is considered to be defective he can be given leave to amend the petition by adding a prayer for appropriate relief. Having regard to the circumstances of the case I think this is an eminently fit case in which I should grant him that relief. The Code of Civil Procedure does not prescribe the form of an application for restitution. There is no decision which enunciates what that form should be and there is still a conflict of opinion as to whether an application for restitution is an application for execution though no doubt our High Court has taken the view that an application for restitution must be an application for execution. But in none of the cases which have taken that view is there any indication of the form in which the application should be made, and whether it should conform to all the requirements of Order 21, Rule 11, Civil Procedure Code. It must also be noticed that the words ' according to the rules for the execution of the decree' which were in Section 583 of the old Code have been omitted in the new Code. This seems to indicate that an application for restitution may be made in such manner as the nature of each case might require and need not follow in every case the procedure in Order 21, Rule 11, Civil Procedure Code.
7. It is seriously contended by Mr. Venkatavaradachariar that I ought not in second appeal allow the amendment as in spite of the objection in the counter-affidavit the appellants have not chosen to amend the petition. But in the view both the lower Courts have taken, namely, that as there was an order in E.A. No. 74 of 1922 this application would not lie, an application for amendment would be of no avail.
8. I therefore give leave to the appellant to make the necessary amendments in regard to the mode in which the assistance of the Court is required within one month from the date of the receipt of this order in the lower Court. In the result the appeal is allowed and the application remitted to the District Munsiff's Court of Namakkal for disposal according to law but in the circumstances I make the appellants pay the respondent the costs of these proceedings throughout. Leave refused.