Judgement

RAMASWAMI, J. : This appeal is brought by special leave on behalf of the judgment debtor against the judgment of the Orissa High Court dated January 31, 1961 in Letters Patent Appeal No 3 of 1959.

2. The deceased plaintiff filed Original Suit No. 500 of 1941 against the appellantdefendant in the Court of the Additional Munsif, Aska claiming Rs. 970 on the basis of a promissory note. The suit was dismissed on August 17, 1942. The plaintiff preferred an appeal No 178 of 1942 before the District Judge who allowed the appeal and set aside the decree of the Munsif and decreed the suit ex parte on March 9, 1943. Against this decree of the appellate Court, the appellant filed Second Appeal No. 100 of 1943 in the Orissa High Court which set aside the decree of the District Judge on November 11, 1946 and remanded the suit to the lower appellate Court for disposal. The lower appellate Court in its turn remanded the suit to the trail Court by its judgment dated April 11 , 1947. In the meantime the original plaintiff died and the present respondents were brought on record as his legal representatives. The suit was again dismissed by the trial Court on November 29, 1947 but on appeal the Additional Subordinate Judge set aside the judgment and decree of the Munsif on November 30, 1948. The appellant carried the matter in Second Appeal No. 12 of 1949 to the Orissa High Court which dismissed the appeal on August 27, 1954.

3. After the ex parte decree was passed in appeal No. 178 of 1942 by the District Judge on March 9, 1943 the plaintiff executed the decree, attached the properties in dispute and himself purchased the properties in Court auction. The plaintiff also took delivery of the properties on May 17, 1946 and since that date the respondents have been in possession of the properties and enjoying the usufruct. After the decree of the High Court dated November 11, 1946 in Second Appeal No. 100 of 1943 the appellant made an application for restitution in the Court of Additional Munsif in Miscellaneous Judicial Case No. 34 of 1947. The plaintiff obtained a stay of the hearing of the Miscellaneous Judicial Case from the Court of the Additional District Judge but on March 30, 1948 the order of stay was discharged. In Civil Revision No, 75 of 1948 the High Court also granted interim stay in the proceedings in the Miscellaneous Judicial Case at the instance of the plaintiff but the order of stay was vacated by the High Court on April 28. Thereafter the present appellant got the Miscellaneous Judicial Case stayed till disposal of his Second Appeal after remand. On July 12, 1956 the Miscellaneous Judicial case was allowed by the Munsif and an order of restitution was made in favour of the appellant. The respondents filed an appeal before the Subordinate Judge of Berhampur who allowed the appeal and set aside the order of restitution. The appellant took the matter before the High Court in Miscellaneous Appeal No.24 of 1958 which was allowed by P. V. Balakrishna Rao, J on October 3, 1958 and it was ordered that the restitution of the properties should be made to the appellant subject to the condition that he must deposit the amount decreed in favour of the plaintiff-decree holder. The order of the learned Single Judge was, however, set aside in Letters Patent appeal by a Division Bench which held that the appellant was not entitled to restitution of properties sold in the execution case .

4. The question presented for determination in this case is whether the appellant was entitled to restitution of his properties purchased by decree-holder in execution of the decree passed by the District Judge on the ground that the decree was set aside by the High Court and the suit was remanded for re-hearing and fresh disposal under the provisions of S. 144 of the Civil Procedure Code which states as follows :

"144.(1) Where and in so far as a decree or order is varied or reversed, the Court of first instance shall, on the application of any party entitl