1. The only question for our decision in this appeal is, whether the case falls under Section 144, Civil Procedure Code. Mr. Rajah Iyer has argued that it does not, because the abatement was not set aside in appeal but by means of separate proceedings. As regards this, we are content to follow the ruling in Tangulur Subbarayudu v. Yerramsetti Seshasani 33 Ind. Cas. 739 and to hold that 'section 144 is not confined to cases where restitution is claimed on the reversal of the decree in first or second appeal, provided the decree is varied or reversed the section applies, however the reversal or variance has been effected.' In this case the order of abatement was undoubtedly set aside by the order of this Court in Letters Patent Appeal.
2. It was next argued that the order of this Court in the Letters Patent Appeal did not affect the order of the Subordinate Judge awarding costs to the defendants. This order as to costs is a necessary corollary to the order declaring the case to have abated, and, apart from it, there could be no conceivable reason for directing the payment of costs by the estate of the deceased first plaintiff who initiated the suit. Reliance was placed in this connection on the ruling in Raghu Nath Das v. Badri Prasad 6 A. 21. But we think the case is easily distinguishable. That decision proceeded mainly on the ground that the Subordinate Judge who had disposed of the objection petition under Section 280, Civil Procedure Code, was functus officio and could make no order for restitution. In the present case, the result of this Court's order in the Letters Patent Appeal has been to set aside the abatement and revive the suit as originally launched and it cannot be said that the Subordinate Judge was functus officio.
3. Then, it is contended that the second plaintiff, the son of the original first plaintiff who applied for restitution, was not a party to the suit. No doubt he now carries on the suit as reversioner in succession to the original reversioner, his father. But he enjoys a dual capacity as the representative of his father's estate, and in this capacity costs were paid by him and there is no reason why he should be debarred from recovering them.
4. Lastly, it is urged that the estate of the first plaintiff is not entitled to derive subsidiary benefit is consequent of an order obtained by second plaintiff. But we can see no reason why it should not be so entitled and in equity relief ought not to be granted, We think that the District Judge has taken a correct view of this case and we dismiss the second appeal with costs.