Meda Chinna Subbamma vs Papireddigari Chennayya by his guardian ad litem naga Peddayya (Legal representative)

Sadasiva Ayyar, J.—Section 144 of the CPC cannot, in terms apply as no decree was varied or reversed but only an order under Order

XXI, Rule 90, refusing to set aside a sale in execution, was reversed by the Appellate Court. ''

Assuming that Section 151 of the CPC allows an order for restitution in appropriate cases even though it does not fall u/s 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.

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. Manicka Udayan v. Rajagopala Pillai ILR (1907) Mad. 507 which held otherwise has been disapproved of in Nadamuni

Narayana Iyengar v. Veerabhadra Pillai ILR (1911) Mad. 417 to both of which decisions the present learned Chief Justice was a party.

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 a person not shown to be a party to and so bound by the order of the Appellate Court setting aside the sale.

The appeal is dismissed with costs.