1. Section 144 of the Code of Civil Procedure cannot in terms apply as no decree was varied or reversed, but only an order under Order XX.I, Rule 90, refusing to set aside a sale in execution, was reversed by the Appellate Court.
2. Assuming that Section 151 of the Code of Civil Procedure allows an order for restitution in appropriate oases, even though it does not fall under Section 144 of the Code of Civil Procedure, such an order cannot be made on the analogy of Section 144, unless the auction-purchaser was a party before the Appellate Court which set aside the sale in the proceedings instituted for setting it aside.
3. The mere fact that the decree-holder was a party to those proceedings will not suffice as the Court auction-purchaser is not the representative of the decree-holder. Manickka Odayan v. Rajagopala Pillai 2 M.L.T. 347 : 17 M.L.J. 291, which held otherwise, has been disapproved of in Nadamuni Narayana Iyengar v. Veerabhadra Pillai 34 M. 417 : (1910) M.W.N. 9: 21 M.L.J. 928, to both of which decisions the present learned Chief Justice was a party.
4. The Munsif says, that the auction-purchaser need not at all be a party to any proceedings for confirmation of or setting aside the sale. The petition for restitution does not expressly state that the Court auction purchaser was a party to the proceedings taken to have the auction sale set aside. No records have been produced before us to establish that fact. We, therefore, cannot hold that Section 151 empowers the Court to pass an order for restitution against the person not shown to be a party to, and so bound by the order of the Appellate Court setting aside, the sale.
5. The appeal is dismissed with costs.