The only question for our decision in this appeal is whether the case falls under Sect. 144, Civil Procedure Code. Mr. Rajah Aiyar has argued that it does not, because the abatement was not set aside in appeal but by means of separate proceedings. As regards this, we are content to follow the ruling in Subbarayudu v. Yerram Setti Seshasani (I.L.R., 40 Mad., 299) [LQ/MadHC/1916/18] , and to hold that Sect. 144 is not confined to cases where restitution is claimed on the reversal of the decree in first or second appeal; provided the decree is varied or reversed the section applies, however, the reversal or variance has been effected. In this case the order of abatement was undoubtedly set aside by the order of this Court in Letters Patent Appeal.

It was next argued that the order of this Court in the Letters Patent Appeal did not affect the order of the Subordinate Judge awarding costs to the defendants. This order as to costs is a necessary corollary to the order declaring the case to have abated, and apart from it there could be no conceivable reason for directing the payment of costs by the estate of the deceased 1st plaintiff who initiated the suit. Reliance was placed in this connection on the ruling in Raghu Nath Das v. Badri Prasad (I.L.R., 6 All., 21). But we think the case is easily distinguishable. That decision proceeded mainly on the ground that the Subordinate Judge, who had disposed of the objection petition under Sect. 280, Civil Procedure Code, was functus officio and could make no order for restitution. In the present case the result of this Courts order in the Letters Patent Appeal has been to set aside the abatement and revive the suit as originally launched and it cannot be said that the Subordinate Judge was functus officio.

Then it is contended that the 2nd plaintiff, the son of the original 1st plaintiff, who applied for restitution was not a party to the suit. No doubt he now carries on the suit as reversioner in succession to the original reversioner, his father. But he enjoys a dual capacity as the representative of his fathers estate, and in this capacity costs were paid by him and there is no reason why he should be debarred from recovering them.

Lastly it is urged that the estate of the 1st plaintiff is not entitled to derive subsidiary benefit in consequence of an order obtained by 2nd plaintiff. But we can see no reason why it should not be so entitled and in equity relief ought not to be granted. We think that the District Judge has taken a correct view of this case and we dismiss the Second Appeal with costs.

Appeal dismissed.