Rankin, C.J:— The appellant Doyal Sarkar sued the principal respondents in 1922 for possession of certain lands and in the trial Court obtained a decree on 30th November 1922 for possession of the lands claimed and for the sum of Rupees 49-8-6 for costs. Respondent 1 appealed from that decree and on 14th January 1924, the appellate Court varied it by disallowing the plaintiff's claim to five bighas out of the suit lands and by reducing the costs recoverable by the plain, tiff in respect of the proceeding in the trial Court to Rs. 36-7-9. In the meantime, in 1923, the plaintiff levied execution upon the trial Court's decree and in execution of the decree for costs put up to sale and himself purchased on 5th June 1923, two jotes of the defendants. The jote first sold fetched Rs. 35 and the second jote Rs. 15. In 1925 the defendants applied to the trial Court under Section 14-4 of the CPC, asking for restitution not only in respect of the five bighas of land as to which they succeeded in the appellate Court, but also for restitution of the two jotes sold in execution of the decree for costs. The only question before U3 has reference to these two jotes.

2. The Munsif refused to direct possession of these two jotes to be given bask to the defendants holding that for the amount of costs ultimately awarded in respect of the trial it would have been necessary to sell both jotes and that the order to which the defendants were entitled upon this item of their claim was an order for the difference between the amount of money obtained by the plaintiff by the process of execution and the amount of money to which the plaintiff was ultimately found to be entitled together with interest upon this difference. The Subordinate Judge took the other view. He made an order directing that the plaintiff should give up possession of the two jotes to the defendants with mesne profits, subject to the condition that the defendants should deposit the sum ultimately awarded in respect of the costs in the trial Court with interest at 6 per cent. From what date this interest is to run is not clear to me. It does not appear that at any time after the date of the sale, 5th June 1923, the sale proceedings were challenged for irregularity. The learned Subordinate Judge however appears to think that having regard to the area of the two jotes they were sold for a very small price. This however does not seem in the circumstances of the present case, to have any real bearing on the question before us. The execution sale must be taken to have been a proper sale; and indeed, there has been no such inquiry into the matter as to justify any finding that for the defendants' interest in these rent bearing lands the price obtained is any evidence that the sale was not properly conducted. The question before us must be settled by careful attention to the provisions of S. 144 of the Code of 1908, which is as follows:

“144(1) Where and in so far as a decree is varied or reversed, the Court of first instance shall, on the application of any party entitled to any been by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree or such part thereof as has been varied or reversed; and, for this purpose, the Court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly consequential on such variation or reversal.

(2) ***”.

3. On this section I think it is important to notice the words “in so far as a decree is varied or reversed” and the correlative words “such part thereof as has been varied or reversed.” It is also noticeable that what the Court is required to do is “so far as may be” to “place the parties in the position which they would have occupied but for such decree or such part thereof as has been varied or reversed.” The section would seem to give a clear direction to the Court to ask itself in the present case, what, if the original decree for costs in the trial Court had been a decree for Rs. 36-7-9 instead of for Rs. 49-8-6, would today have been the position of the defendants. It is open to the defendants to show in any way they like that in that event the other, or either of them, would not have been sold away in execution. This however they must show in order to entitle them under the section to get back the jotes as distinct from the difference between the money received by the plaintiff and the money to which he has ultimately been found to have been entitled. The defendants do not upon their application for restitution, give any evidence to the effect that, had the decree for costs been limited to Rs. 36-7-9, they would have been able to pay it and save their jotes. Indeed it does not appear that they took any part in resisting or avoiding the execution of 1923.

4. Upon this appeal the learned advocate for the respondents has referred us to reported decisions under S. 583 of the Code of 1882 and under the present section. He offers on behalf of his clients—and I will take it that he made the same offer in the trial Court—to pay up the debt with interest from the date of the trial Court's decree in the suite on that footing he relies upon the cases to which I am about to refer.

5. The first case is Gouree v. Jodha . [1873] 19 W.R 416.. That case was decided under the Code of 1859 which, contained no express provisions as to restitution. An ex parte decree had been made for Rs. 10,000; an execution sale had been held under the decree and certain property had been purchased by the decree-holder; thereafter the ex parte decree was set aside and upon retrial it was ultimately held that the plaintiff's claim was good only for Rs. 2,000. The original defendant then brought a suit to recover possession of the property which had been sold to the decree-holder on the ground that the ex parte decree in execution of which the sale was held had been set aside. The Court held that even although the ex parte decree had been set aside nevertheless, as it now appeared that the original defendants were indebted to the extent of Rs. 2,000 to the original plaintiff, they were not entitled to recover back the property without paying this money as a condition precedent. As they never made any such offer their suit to recover the property was dismissed.

6. In Zainul Abdin v. Mahamed Ashgar . [1888] 10 All. 166, an ex parte decree had been made in 1874 and as a result of appeals brought therefrom, it was confirmed in 1880 as to part only. Several sales had meanwhile taken place between 1874 and 1876; the first sale was not challenged by the judgment-debtors who agreed that this sale might stand as satisfying what was due under the decree of 1880. They attacked the subsequent sales only, it appearing that the amount realized by the first sale would have been sufficient to cover the amount finally decreed. With regard to these subsequent sales, it was held by the Privy Council that they could not be set aside in cases where the purchasers were bona fide purchasers who were not parties to the decree; but that the case was different as regards any property purchased, by the decree holders themselves.

7. Neither of these decisions appears to be of any service to the present respondents. Much reliance however is placed by the learned advocate on Syed Nathadu Sahib…(Plaintiff), v. Nallu Mudaly…(Defendant), .* . [1903] 27 Mad. 98.. In that case the plaintiff obtained a decree for possession of certain lands with mesne profits; on appeal it was decided that he was entitled to recover possession of only three-fourths of the lands and mesne profits in respect of such three-fourths; the basis of this decision being that the share of one of the defendants, namely, one-fourth, was not affected by the plaintiff's cause of action. In the meantime certain other lands of this defendant had been sold on account of the decree for mesne profits. It was not clear whether under the ultimate decree this defendant was one of the parties responsible for the whole of the mesne profits payable in respect of the three-fourths of the land decreed to the plaintiff. On the assumption however that this defendant was so liable, it was contended for the plaintiff that this defendant was bound by the sales of his property since they fetched no more than three-fourths of the mesne profits. The High Court referred to the case of Zainul Abdin already mentioned, and held that.

“there is no authority for the contention on behalf of the appellant that when the property is knocked down for a sum equal to, or less than, that eventually found due, the rule has no application. Nor can any sound reason be found to support it. The object of the rule is, so far as it relates to judgment-creditors, apparently to prevent the interests of judgment-debtors suffering by sales of their property before their liability is finally determined, and to avoid judgment-creditors profiting at the expense of their debtors by becoming purchasers in sales pending litigation by way of appeal. To uphold the contention in question would, on the one hand, result in judgment-debtors who are appealing against decrees passed against them having to pay more than they are in truth bound to pay in order to prevent a sale of their properties before their liability is finally ascertained, and, on the other, to encourage speculative purchases by decree-holders to the injury of judgment-debtors. In cases where the decree is not altogether reversed but only modified, the view most favourable to a decree-holder purchaser in the position of the appellant would be that deducible from the case of Gouree v. Jodha Singh, where it was held that a judgment-debtor seeking a plaintiff to get rid of the sale should have relief only on condition that he paid what was due under the ultimate decree; in other words, that the decree-holder purchaser should be treated as if he held a charge upon what he purchased for what was ultimately found due to him…

8. This decision was given in a suit brought by the defendant for recovery of the land; S. 583 of the Code of 1882 does not appear to have been applicable to the case; and in any event that section contained no rule by way of guidance to the Court as to the metho 1 or measure of restitution. It is difficult to see that in Zainul Abdin's case the Judicial Committee had laid down any rule, save that a variation or reversal of a decree does not affect the sale if the purchaser is no party to the decree. The learned Judges of the Madras High Court appear to me to have paid insufficient attention to the facts of the case before the Judicial Committee. We have already seen that the Judicial Committee was only concerned with those sales which took place after the first sale had produced sufficient to satisfy what was ultimately found to be due. The learned Judges in Syed Nathadu's case however went further; they spoke not only of a rule but proceeded to explain the object of the rule. The object of restitution seems to be in no way obscure. It is to restore the parties, so far as may be, to the position in which, according to the ultimate decision they ought to be, setting aside, so far as is necessary, and so far as is possible, all consequences produced by any erroneous action of the Court. According to the Madras Judges however the object is apparently.

“to prevent the interests of the judgment-debtors suffering by sales of their property before their liability is finally determined, and to avoid judgment-creditors profiting at the expense of their debtors by becoming purchasers in sales pending litigation by way of appeal.”

9. If this means that the object of the rule is to discourage execution pending appeal, I cannot agree with it. Nor is it evident that the result of any contrary doctrine would be to compel judgment-debtors to pay more than is due in order to prevent the sale of their properties before their liability is finally ascertained or to encourage speculative purchases by decree-holders to the injury of judgment-debtors. If the judgment-debtor could, and would, have paid what was due, and thus prevented a sale, it seems to me to; be clear enough that he can get the sale set aside as against the decree-holder by way of restitution. Where it appears however that the sale would not have been prevented had the original decree been correct, I see no object to be served in setting aside the sale. In any event, the legislature in 1908 has since laid down the law on the matter.

10. In Chandan v. Ramdeni . [1904] 31 Cal. 499. application was made under S. 244 of the Code of 1882 which corresponds to S. 47 of the present Code. The plaintiff obtained a decree for rent in 1901 and in 1902 the appellate Court reduced the amount of the rent. Shortly before the decision on appeal, the plaintiff had brought the holding to sale and had purchased it himself. The Court held that the sale had taken place in execution of the decree which was set aside by the appellate Court, and said that there was no distinction in principle between the case before it and the case of Set Umedmal v. Srinath Ray . [1900] 27 Cal. 810 where the sale had been held under an ex parte decree which had been altogether set aside. This case also was before the present Code.

11. Sagore Mandal v. Mafijaddin . [1920] 51 I.C 959. was however decided under the Code of 1908. In a suit for rent the lower appellate Court had decreed the suit at the rate of Rs. 125-4-0 per year; in a decree of the High Court the suit had been ultimately decreed at the rate of Rs. 73-12-0 per year. Meanwhile the plaintiff had put the holding to sale and purchased it. Upon application for restitution under S. 144, the Subordinate Judge considered that the fact that the plaintiff had subsequent to his purchase, settled the land with a third party, was a fact which prevented the sale being set aside. This was the question decided before the High Court. Holding that the settlement with a tenant was not within the principle applicable to purchases by strangers at a Court sale, the High Court followed Chandan Singh's case without apparently any further consideration of the matter.

12. In 1921, the question came again before the High Court of Madras in Sundararama Reddi v. Raghava Reddi . A.I.R 1922 Mad. 96. In that case the decree of the first Courts was affirmed with a single modification that the rate of subsequent interest was reduced from 9 to 6 per cent so that the decretal sum was reduced from Rs. 7,695 to Rs. 7,495. In the meantime 19 item of property had been sold in execution for a total sum of Rs. 10,375; five items had been purchased by the decree-holder himself. The judgment-debtor applied under S. 144 for redelivery of these five items by way of restitution. The High Court negatived this claim holding that under S. 144 the prejudice to be removed by restitution must be the result of the erroneous terms of the original decree. Having found that when the last item was sold, the amount already realized was short of the sum ultimately found to be due, and that if the original decree had been for the correct amount, it would still have been necessary to proceed with the sale of that item, the High Court refused to set aside the sale. I agree with the observations made upon previous decisions and I think the following passage from the judgment puts the matter clearly and correctly:

“Whether the amount to be realized was Rs. 7,695 or Rs. 7,495 did not afreet the necessity of putting up the last item of sale. In other words, their position as regards the sale was in no way affected by the variation in the decree.

“It was argued that any reduction in the amount of a decree affects the position of the judgment-debtor, inasmuch as it renders it easier for him to satisfy the decree and prevent the sale of his property in execution. No doubt where the reduction is large this may be so; and whether it is so or not, must be a question of fact. But in the present case the reduction is so slight that it cannot be seriously contended that respondents could have satisfied a decree for Rs. 7,495, but could not raise the extra Rs. 200, and no such allegation has ever been made.”

13. In 1929, Pratt, J., in Maung Ban Gyi v. Ma Ngwe Bon . A.I.R 1929 Rang. 157, referred to the cases decided prior to the present Code. By the original decree the plaintiff was to recover Rs. 550; by the appellate decree the amount was reduced to Rs. 110. In the meantime the plaintiff had purchased certain land of the defendant at an execution sale. Pratt, J., set aside the sale on the judgment-debtor paying Rs. 115 into Court, saying:

“It is true that in the present instance the decree was not set aside, but only modified. The principle however remains the same.”

14. It appears to me that as a matter of construction of S. 144 the decision in Sundararama Reddi v. Baghava Reddi, is correct and that the respondents before us cannot recover property which was sold in execution except upon showing that the sale of the last of the two jotes was in substance and in truth a consequence of the error in the original decree. They cannot now be restored to the possession of anything unless it is made to appear that but for the fact that the trial Court awarded Rs. 49-8-6 as costs instead of Rs. 36-7-9 only they would now be in possession of the jotes. We have to.

“place the parties in the position which they would have occupied but for such decree or such part thereof as has been varied or reversed.”

15. These words have to be applied with attention to the substance and reality of the matter. It makes no difference, in my judgment, whether the decree of the appellate Court is expressed by saying that the trial Court's decree be varied by reading Rs. 36 instead of Rs. 49; or whether it is expressed by saying that the trial Court's decree is set aside and in lieu another decree is made for the smaller sum.

16. On this view it appears to me that the learned Munsif has approached the present case from the correct point of view and that the order of the learned Subordinate Judge cannot stand. The evidence discloses that the first jote to be sold fetched Rs. 35 only. A judgment debt of Rs. 36-7-9, with costs of execution, would amount, as the Munsif states, to some 40 rupees, so that by the sale of the first jote the small sum of Rs. 5 was left unsatisfied. In these circumstances the decree-holder would have been quite entitled to proceed to sell the second jote which in fact was sold for Rs. 15. There is no evidence at all to show that the judgment-debtors could, or would, have saved the first jote had the debt been treated as being Rs. 40 instead of Rs. 50. He did nothing to save the second jote on the footing that Rs. 15 was still due. The question is whether we are entitled to say that for Rs. 5 the judgment-debtors would have saved the second jote. What a person would have done is a matter not always capable of conclusive proof and if the judgment-debtors, or either of them, had given evidence of the fact that for Rs. 5 they would have saved the second jote, I should have been desirous of believing them. They gave no such evidence however and I am not satisfied that they gave any real attention to this matter of the execution saje so as to know what the first jote fetched; and to be in a position if possible to save the second. So far from being satisfied that the second jote would not have been sold if the original decree had been for the correct amount, I am of opinion that the amount by which that sum was in excess is no part of the circumstances which brought about the sale of both the jotes. In my judgment the appeal should be allowed with costs (hearing-fee two gold mohurs) and the decree of the Munsif should be restored.

Pearson, J.:— I agree.

K.N/R.K

17. Appeal allowed.