P. B. MUKHARJI, J.

( 1 ) IN this appeal a short and interesting point of law arises for determination. The point for determination is the interpretation of the word "party" used in Section 144 of the Civil Procedure Code. The controversy is whether the word "party" means only a party to the suit or the decree or the appeal or does it also include a stranger.

( 2 ) THE facts giving rise to this appeal may be set out before proceeding to determine the question. The plaintiff instituted Title Suit No. 110 of 1952 against the respondent as defendant. The suit was decreed in part by the learned Munsif who allowed a decree for possession and eviction of the defendant. An appeal was thereafter taken from that judgment and decree before the learned Subordinate Judge who allowed the appeal and set aside the judgment and decree of the learned Munsif and dismissed the suit on the ground that the land in suit was held by the defendant's wife as a tenant. But the defendant's wife was not a party to the suit. Pending the decision of the appeal the plaintiff executed the decree and got possession of the land in suit and also realised the cost. When the appeal was allowed and the suit dismissed the defendant filed an application under Section 144 C. P. C. for restitution of the property. This application for restitution was joined by the defendant's wife who was not a party to the suit. The learned Munsif allowed the application and held that the defendant's wife although not a party to the suit was entitled to restitution and accordingly ordered the restoration of possession of the property to her.

( 3 ) FROM this order of restoration there was an appeal by the plaintiff. The learned Subordinate Judge dismissed the appeal and confirmed the order of the learned Munsif.

( 4 ) THE question for determination, therefore, is can an order for restoration be made in favour of the defendant's wife who was not a party to the suit although she was a party to the application under Section 144 C. P. C. along with her husband. Section 144 of the Code of Civil Procedure inter alia reads as follows :--"where and in so far as a decree is varied or reversed, the Court of first instance shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree or such part thereof as has been varied or reversed. . . . "

( 5 ) MR. Rai for the appellant submits that the word "party" in Section 144 C. P. C. means a party to the suit. In this connection he also draws our attention that where the Civil Procedure Code wanted to give benefit to those who are not parties, the Code used such language as "any person" as in Order 21 Rule 89 or Order 21 Rule 90 C. P. C. He has also relied on certain authorities.

( 6 ) THE first authority on which he relies is Gunga Prasad v. Brojo Nath Das, reported in (1908) 12 Cal WN 642. That was a decision on the old Section 583 C. P. C. It is held there that it is not necessary that a person asking for restitution under Section 583 C. P. C. should have been a party to the successful appeal, if the appeal is in effect and substance in favour of such a party. This decision, however, does not help the appellant because on the facts of that case both the parties were parties to the original suit and decree and what happened thereafter was that one was not a party to the appeal. Therefore the Court there expressed the view at p. 643 as follows :--"it is not necessary that a person asking for restitution should be a party to the appeal, if the appeal is in effect and substance in favour of such a party. He is entitled to the benefits arising out of the decree in appeal and the Court may direct restitution of the property in execution. "the authority may easily be turned against the contention because it is a tacit recognition of the principle that the word "party" in

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