Restitution can be ordered against transferees of the subject-matter of the suit who are bound by the rule of lis pendens.

1. This second appeal arises out of restitution proceedings. Appellants Nos. 1 and 2 filed Suit No. 67 of 1943 in the Court of the Civil Judge, Junior Division, at Pen against respondents Nos. 1 and 2 and another person. The suit was filed under Order 1, Rule 8, of the Civil Procedure Code by appellants NOS. 1 and 2 in their representative capacity. Appellants Nos. 1 and 2 claimed to be the Guraos of the Rameshwar Temple at Pen. In the suit they claimed possession of five lands alleging that the lands were granted in Inam to the Rameshwar Temple and were managed through Vahiwatdars. This suit was decreed on 13th September, 1946, and in December 1946 in execution of the decree appellants Nos. 1 and 2 obtained possession of the lands. Against the decree of the trial Court an appeal was filed by respondents Nos. 1 and 2 to the District Court and in appeal the decree of the trial Court was confirmed. In second appeal to this Court a consent decree was passed on 17th April, 1953. By that decree it was provided inter alia:

"That the Dhavale Gurav family including the defendants (respondents 1 and 2) are entitled to and do recover and retain possession of and enjoy the income of the lands (in suit) and do take and receive the cash allowance and whatever offering and Naivedya in cash or kind that may be placed before the Deities by the devotees in lieu of their services aforesaid".

Respondents Nos. 1 and 2 applied by Miscellaneous Application No. 12 of 1953 to the Court of the Civil Judge, Junior Division, at Pen for an order for restitution of possession of the lands of which they had been deprived in December 1946 in execution of the decree of the trial Court. By the application respondents Nos. 1 and 2 also claimed an order that the cash allowance to which they were entitled under the consent decree be paid to them. The learned trial Judge passed an order granting symbolical possession to respondents Nos. 1 and 2 of the lands of which they had been dispossessed. He held that appellants Nos. 3 and 4 having come on the land as tenants of appellants Nos. 1 and 2 during the pendency of the appeal to the District Court, they were entitled to protection and an order for actual possession could not be passed against them. The learned Judge also held that no order relating to cash allowance could be passed in the restitution proceedings In favour of respondents Nos. 1 and 2. The learned Judge accordingly passed an order for issue of a warrant under Order 21, Rule 36, of the Civil Procedure Code, for delivery of symbolical possession of the lands described in the application.

2. Against the order passed by the trial Court an appeal was preferred to the District Court at Kolaba. In appeal, the learned District Judge held that appellants Nos. 3 and 4 having entered the land as tenants of appellants Nos. 1 and 2 during the pendency of the appeal, they were bound by the decree passed by this Court in Second Appeal from the decree in Suit No. 67 of 1943 and they were liable to deliver possession as directed by the consent decree. The learned appellate Judge accordingly passed an order that a warrant for possession in favour of respondents Nos. 1 and 2 do issue under Order 21, Rule 35 of the Civil P. C. Against that order this appeal has been filed by appellants Nos. 1 to 4

3. Mr. V.S. Desai, who appears on behalf of the appellants, has raised two contentions in support of the appeal; (1) that restitution cannot be ordered in these proceedings against appellants Nos. 3 and 4 who are tenants of appellants Nos. 1 and 2, and (2) that an order for actual possession cannot be passed against appellants Nos. 3 and 4 in an application for restitution. Mr. Desai says that an order for restitution can be passed only against parties to the suit and not against persons who claim under a title derived from the parties to the suit, and he contends that Section 144 of the Civil P. C., does not authorise a Court dealing with an application for restitut