1. This appeal, which was argued before us by appellant-plaintiff J, a vakil, in person is an appeal without any merits, but one which raises a point, of procedure of some importance.
2. The appeal lies from the judgment of the District Judge, Nellore dismissing the plaintiffs' claim, which was instituted in 1921 and reaches this Court ten years later, for a declaration that certain sales of land are void with consequential relief.
3. The sales in question were auction sales in execution of a decree made in O.S. 24 of 1911. That action was to recover Rs. 5,663 due on promissory notes and accounts and the defendants to that action admitted lis. 3,121 and contested the rest. In the result a decree for the amount claimed with interest at 9 per cent from 29th June 1911 to date of realization was given. This decree was passed on 2nd December 1912.
4. Some time during March or April. 1913 the defendants in that action preferred an appeal and on 26th April 1913 prayed for a stay of execution pending appeal. On 30th June 1913 the then District Judge made an order of which the following is the relevant extract:
I think the best course is to stay the sale for six weeks on condition that [the money payable under the decree is paid into Court within that period.
5. This had the effect of delaying the sale until 11th August 1913. The money was not paid by that date and on 17th August the issue of a fresh proclamation notifying that the sale would take place on 22nd September 1913 was ordered. A petition was then put in stating that an appeal had been filed against the order of 30th June and asking for a stay pending that appeal. On that petition the sale was stayed conditionally upon the amount due under the decree of 2nd December 1912 being paid into Court by 20th September 1913. It was not so paid and the sale took place (after further proceedings and delays) and was concluded on 23rd October 19.13. The purchasers as to Rs. 2,719 out of Rs. 10,357 were the decree-holders. There were 19 lots and they purchased five.
6. The appeal from the decree of 2nd December 1912 was disposed of on 5th June 191.7 and the original decree was confirmed subject to the 'reduction of the interest awarded from 9 % to 6 %.
7. The unsuccessful defendants having obtained this variation of the original decree next proceeded under Section 144, Civil P. C, for restitution by redelivery of the five items purchased by the decree-holders. The District Judge allowed the claim. The decree-holders appealed to the High Court and judgment on appeal. was given on 1st December 1921. In the result the appeal was allowed on the ground that the variation in the decree did not prejudice the appellants.
8. In the course of those proceedings it appeared that the variation of the decree had the result of altering the decree amount from Rs. 7,695 to Rs. 7,495. It was pointed out that Syed Nathadu Sahib v. Nallu Mudaly 27Mad.98, was distinguishable on the ground that that case was not decided under the present Civil Procedure Code but under Section 583 of the old Code under which 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.
9. Shortly stated therefore that action decided that the sales, granted that the sales took place in the order directed which order had nothing to do with the decree that was subsequently varied, would have taken place exactly as these sales took place even though at the time of the sale the. original decree had not been in its original but in its varied form, i. e., for Rs. 7,495 and that therefore no claim for restitution lay. The plaintiffs now re-litigate this matter land seek to obtain restitution by means of an action to declare those sales void. 'Obviously no such action lies if Section 144 exhausts the remedies which a litigant, 'against whom a decree has bean given, has, when his property is sold under the decree and the decree is subsequently varied, to have restored to him the property sold in excess of what should have been sold.
10. That matter is put in two ways:
1. Order 41, Rule 6(2), requires the Court on application made where there is an appeal against a decree to stay execution (though such stay be conditional) until the appeal is disposed of. This rule, it is said, was broken when the sale was stayed only for six weeks and the subsequent stay cannot be treated as curing the invalidity of the first stay. It is therefore argued that the sale was void.
2. The sale being void the aggrieved persons can, it is urged, by a separate suit, claim a declaration (in addition to proceeding under Section 144) despite Section 144 (2), Civil P. C,, and notwithstanding Section 47, it being urged that the claim now raised is not 'any restitution or other relief' which could be obtained under Section 114 (1) and does not raise a question relating to ' the execution, discharge or satisfaction' of a decree.
11. We consider that both these questions have been carefully considered and correctly answered by the learned District Judge in paras. 63 to 67 of his judgment and we see very little point in an elaborate survey of the numerous authorities cited. It is sufficient to indicate that in our opinion assuming the stay order of 30th June 1913 was not correctly framed it did not render the sale a nullity. The sale took place under the decree, not under the order staying execution. That decree was not vacated but confirmed subject to a minor variation. The stay order did not in the least prejudice the person claiming a stay bearing in mind the subsequent stay order. As to the second point we are of the opinion that the plaintiffs' appropriate remedy, if any, was under Section 144. This remedy he has pursued and has failed. He has no other right of action in cases such as this where the sale is not void ab initio, whatever may be the case when the sale is void ab initio and accordingly this present action does not arise and must fail.
12. The appeal is accordingly dismissed with costs for two sets: (1) respondents 1, 6 and 8; (2) for the remaining contesting respondents i.e., 12-16, 18 - 23, 25.