S.C. Gupte, J.

This second appeal raises an important question concerning restitution of a judgment debtor on a decree being varied, reversed, set aside or modified, which principle is statutorily recognised in Section 144 of the Code of Civil Procedure, 1908. The decree passed by the trial court in the present case was varied by the appeal court. In the meantime, however, the decree was executed by sale of the judgment debtor's property. The judgment debtor applied for restitution. Both the trial court and the lower appellate court rejected his application inter alia on the ground that the original decree was modified only to the extent of interest payable and the judgment-debtor, not having deposited any amount in Court after the original decree was passed and the property was put to auction, was not entitled to restitution. This second appeal was admitted on the footing that the law of restitution distinguished between decree holder auction-purchaser and an innocent stranger auction-purchaser, holding the former to be dis-entitled to any protection from restitution.

2. A few facts, which are not in dispute, may be noted at the very outset. Respondent Nos. 1 to 3 (original Plaintiffs) filed a special civil suit (S.C. Suit No.255 of 1992) against the Appellant (original Defendant No.1) and two others for recovery of Rs. 10,880/- with interest at the rate of 12% per annum pendente lite and post decree, and other ancillary reliefs and costs. The suit was partly decreed on 15 February 1982 by the 4th Joint Civil Judge, Senior Division, Pune, by awarding (i) principal amount of Rs. 8,000/-, (ii) presuit interest of Rs. 2,880/- ( at the rate of 12% p.a.), (iii) pendente lite and further interest at the rate of 12% p.a. till realization of the principal amount and (iv) costs, against Defendant No.1 ("Defendant"), whilst rejecting the money claim and ancillary reliefs against Defendant Nos.2 and 3. The Plaintiffs filed an appeal (Civil Appeal No.1293 of 1986) in the District Court against the partial decree. The Defendant filed cross-objections. The Civil Appeal was decided by the District Court on 2 August 1988, by dismissing the Plaintiffs' appeal and allowing the Defendant's cross objections to the extent of interest and cost. Instead of 12% p.a., it awarded interest at the rate of 6 % p.a., both presuit and pendente lite/future interest. It directed the parties to bear their own costs. As a result, the appellate decree, whilst retaining the principal decretal amount of Rs. 8,000/-, reduced the presuit interest from Rs.2,880/- to Rs. 1,440/- and the pendente lite/future interest from Rs. 15,360/- to Rs.7,680/-, and denied costs of Rs. 1,454 altogether. The total decretal amount of Rs.27,694/- thus stood reduced to Rs. 17,120/-. The Plaintiffs had, however, in the meanwhile, applied for execution of the original decree. The properties of the Defendant were put to auction and were purchased by Plaintiff No.1 decree-holder ("Plaintiff") for a sum of Rs. 34,000/-, recovering by way of adjustment the entire decretal amount. One agricultural land admeasuring 24 acres was even sold thereafter by the Plaintiff to Respondent No.4. After the Defendant's cross objections were partly allowed, as noted above, varying the original decree, the Defendant applied for having the sale set aside and reversed by way of restitution. The Defendant also deposited the decretal amount (as finally decreed by the appeal court) in the trial court. Both the trial court and the first appellate court rejected the Defendant's application, basically on the ground that the Defendant had not deposited any amount in Court, when the suit was originally decreed and the decree was put in execution, that is to say, not even a part of the amount which was finally decreed by the appeal court and hence, could not invoke the principle of restitution.

3. Mr. Pungliya, learned Counsel for the Appellant, makes the following submissions :

(a) The auction purchaser, in the