The main legal point established in the judgment is that the Execution Court has inherent power to order restitution, even in cases not covered by specific provisions of the Code of Civil Procedure, to prevent a miscarriage of justice.

JUDGMENT

1. This is an appeal by the judgment debtors against an order of dismissal made on an application for restitution in the course of proceedings in execution of a mortgage-decree.

2. On the 21st February 1916 the respondent obtained a mortgage-decree against the appellants. On the 17th July 1917 the mortgaged property was sold in execution and was purchased by the decree-holder. No specific bid appears to have been offered by the decree-holder, but it was stated that he purchased the property for whatever was due to him on the decree at the time of the sale. On the 14th August 1917 the judgment-debtors applied to have the sale set aside under Order XXI, Rule 90, Code of Civil Procedure, but this application was not heard for a considerable time.

3. On the 9th February 1918 the decree holder-auction-purchaser and the judgment-debtors came to a settlement to the effect that if the judgment-debtors paid to the decree-holder Rs. 1,313 on or before the 2nd April 1918, the sale would stand cancelled, but on default the sale would stand confirmed. Neither of the two contingencies contemplated by the parties, however, happened. The judgment-debtors did not pay the full amount specified on the day fixed; they paid only Rs. 317, whereupon the decree-holder agreed to extend the time for payment till the 20th April 1918, subject to the reservation that if the balance was not paid within the period specified, the sale would stand confirmed. This arrangement, like that made on the 9th February 1918, received the sanction of the Court. On the 20th April 1918, however, the judgment-debtors brought in only Rs. 230, whereupon the decree holder again agreed to an extension of time till the 15th May 1918, subject to the condition that if what remained still due was not paid on or before that date, the sale would stand confirmed. On the 16th May 1918, no payment was made and an application for further extension of time by the judgment-debtors was refused. The consequence was that on the day following, the 17th May 1918, the sale was confirmed and the application for cancellation of the sale, made on the 14th August 1917, was dismissed. The effect of the order for confirmation was that u/s 65 of the CPC the title to the property purchased by the decree-holder vested in him, as auction-purchaser, from the date of the sale, and, as the decree-holder had agreed to take the property for whatever sum was due under the mortgage-decree, the result was complete satisfaction of the claim under the mortgage, The position then was that although the judgment debt was satisfied in full by the purchase of the mortgaged property by the decree holder, he still held in his hands the two sums of Rs. 317 and Rs. 230 paid to him by the judgment-debtors on the 2nd and 20th April 1918 respectively. This is was overlooked at the time when the order for confirmation was made; for it is inconceivable that if the matter had been brought to the notice of the Court, an appropriate order would not have been made in this behalf. The judgment-debtors, however, waited till the 7th February 1920, when they made the present application for restitution of the two sums mentioned. The Court of first instance held that the judgment-debtors were entitled to a refund of the amount claimed. Upon appeal the District Judge has reversed that order on the ground that the remedy of the judgment-debtors lies by way of a regular suit in the Civil Court. We are of opinion that this view cannot be supported.

4. There is no doubt that the case before us is not covered by the express terms of Section 144, Civil Procedure Code, which recognises the principle of restitution. The question, consequently arises, whether it is competent to the Execution Court, in the exercise of its inherent power, to make an order for restitution with a view to secure complete justice between the parties concerned. Our attention has been drawn to the decisions in Dinesh Prasad v. Sankar Chaudhury 2 C.L.J. 537 : 9 C.W.