(Prayer: Appeal (disposed of on 1-3-1946) against the order of the Court of the Subordinate Judge of Cuddalore dated 31-8-1944 in A.S. No. 163 of 1943 preferred against the order of the Court of the District Munsif of Villupuram dated 18-2-1942 in M.P. No. 1853 of 1941 in O.S. No. 596 of 1938.)

The question in this civil miscellaneous second appeal is whether the appellants were entitled to restitution of their property sold in execution of an ex parte decree which was subsequently set aside. The circumstances were these: In O.S. No. 596 of 1938 in the Court of the District Munsif of Villupuram, an ex parte decree was passed against the appellants for Rs. 948 and costs. In execution of this decree, four items of property were sold for Rs. 1629, one of the items fetching Rs. 1,501, out of the total sum. Subsequently, on an application made by the appellants, the ex parte decree was set aside and thereupon the appellants filed a petition under S. 144 of the Civil Procedure Code for restitution of the properties sold. Before, however, this application was decided, the suit, O.S. No. 596 of 1938, had been heard on merits and a decree was passed for Rs. 798 and costs. The learned District Munsif of Villupuram allowed the application for restitution, but on appeal his order was reversed by the learned Subordinate Judge of Cuddalore. It is argued by learned Counsel for the appellants that the order of the District Munsif was right and that the reasoning of the learned Subordinate Judge, while it might have application to a case in which a decree had been varied on appeal, has no application to a case like the present in which an ex parte decree has been set aside and then a fresh decree passed on merits. Where a decree has been varied or reversed within the meaning of S. 144 of the Civil Procedure Code, the principles on which restitution of property sold in execution of the decree which has been varied or reversed is made are well established. In this Court by the decision in Sundararama Reddi v. Raghava Reddi (42 M.L.J. 315=16 L.W. 355), which has been followed by the Calcutta High Court in Dayalsarkar v. Tari Dastri (59 Cal. 647) [LQ/CalHC/1931/165] . The principle is that restitution will not be ordered merely because the decree has been varied or reversed. It must be shown that the variation is such that if the modified decree had been in force when the sale was held, the sale of either all or part of the property would not have taken place. For the respondent it is argued that as the variation of the decree was only from Rs. 948 to Rs. 798 and as one of the items of property was sold for Rs. 1,501, the sale would have taken place even if the decree ultimately passed had been in force when the sale was held. For the appellant it is argued that this approach to the question is misconceived. There is no question here of a decree which has been varied. The ex parte decree was set aside, and the decree thereafter passed in the suit was a fresh decree. The appellants are therefore entitled in any event to have their property sold in execution of the decree which has been set aside, restored to them. In support of this contention I have been referred to a decision of a Bench of this Court in Sobhanadri Apparao v. Govindaraju Seetharamaiah (2 L.W. 1066), and to decisions of the Bombay and Calcutta High Courts reported in Shivbai v. Yesoo (43 Bom. 235), and Raghunandan Singh v. Jagadis Singh (14 C.W.N. 182), Seth Umendmal v. Srimath Roy (27 Cal. 810) [LQ/CalHC/1900/38] . It is true that in the case decided by this Court no decree other than the ex parte decree appears to have been passed at the time when the question of resitution was considered. I do not think, however, that even if a decree had been passed it would have affected the decision that the purchase by a decree-holder of immoveable property belonging to the judgment-debtor in execution of an ex parte decree becomes ipso facto void when the ex parte decree is set aside. The decisions of the Bombay and Calcutta High Courts referred to are to the same effect.

Learned Counsel for the respondent has drawn my attention to an observation of Rankin, C.J., in the course of his judgment in Dayalsalkar v. Tari Dastri (59 Cal. 647) [LQ/CalHC/1931/165] , that it makes no difference whether the decree of the appellate Court is expressed by saying that the trial Courts decree will be varied by reading Rs. 36 instead of Rs. 49; or whether it is expressed by saying that the trial Courts decree is set aside and in lieu another decree is made for a smaller sum. On the basis of this observation it is argued that where an ex parte decree has been set aside and a fresh decree is passed, the position is not different from a case where a decree in the original suit has been varied on appeal. I am unable to accept this contention. The observations of Rankin, C.J., which in any case did not relate to an ex parte decree cannot affect the authority of Sobhanadri Apparao v. Govindarajulu Seetharamiah (2 L.W. 1066). It must, in my opinion, be taken that where an ex parte decree has been set aside, the fresh decree has no relation to the ex parte decree and cannot be regarded as varying it. Irrespective therefore of the nature of the fresh decree, a judgment-debtor is entitled to recovery of his property sold in execution of the ex parte decree. No doubt, before he can be allowed to recover he may, on principles of equity, be directed to pay either what has been paid to him from the proceeds of the sale or the decree amount if a decree has been passed. In the present case, the appellants say that they are prepared to pay the decree amount and, that being so, it seems to me that the order of the District Munsif should be restored with the modification that the delivery of the property will be subject to the payment of the decree amount, which will of course include costs by the appellants within one month from the date of the receipt of this judgment in the lower Court. The mesne profits if any to be paid by the respondent on account of his possession of the property sold under the ex parte decree will be worked out separately in those proceedings after the decree amount has been paid.

The result is that the appeal is allowed with costs throughout. Leave to appeal is refused.