1. The learned Subordinate Judge, while admitting that Section 144 cannot help the plaintiff: (1st respondent) as the order of attachment and sale of plaint properties in execution in the former suit was never varied or reversed, has nevertheless allowed the suit to be treated as an application for restitution and he invokes Section 151 of the Civil Procedure Code in his support. We do not think that Section 151 can enlarge the scope of Section 144 or can convert an application for a relief which has nothing to do with restitution into, an application for restitution.
2. Mr. V. Ramesam, however, for the respondent, argues that the suit can be converted into an application under Section 47 of the Civil Procedure Code. No doubt it can be, if the application under Section 47 would not be barred by limitation on the date of the suit. The lower Courts have held that it would be so barred, but Mr. Ramesam contends that their view is erroneous.
3. The respondent was added on the record as judgment-debtor in the former suit though in a representative capacity. His property was attached and sold in 1907, and he knew of it at least in March 1908. The present suit was brought on 12th August 1909. So long as a sale in execution confirmed by the Court subsists, the judgment-debtor cannot be heard to state that he is still the owner of the property so sold till he sets aside the sale by appropriate proceedings. Article 166 of the Limitation Act is quite clear and he ought to file his petition to set aside the sale within 30 days of the sale.
4. The lower Court's view is, therefore, right, namely, that this is not a fit case for exercising the discretion given under Section 47, Clause (2), to convert a suit into an application under that section, as the application would be barred under Article 166.
5. The appeal is allowed, the Subordinate Judge's order is set aside and the District Munsif's decree is restored with costs in this and in the Sub-Court payable to the appellant by the plaintiff.