1. Can restitution be ordered de hors Section 144 of the Code of Civil Procedure, 1908 (the CPC for short)? This poignant question is put forth by the decree holder in a suit for realisation for money who happens to be the auction purchaser.

2. The petitioner is the plaintiff in O.S.No.237/1994 on the file of the court of the II Addl. Subordinate Judge of Ernakulam and the respondents are the defendants therein. The suit filed for realisation of money due under an agreement relating to production of a cinematographic film was decreed by judgment dated 30.11.1995. The decree obliged the defendants to pay a sum of Rs.2,01,500/- to the plaintiff with interest on the principal sum of Rs.2,00,000/- at 12% per annum. The liability to pay such interest was specified to run from the date of suit till the date of realisation and the defendants were also mulcted with costs. The decree was challenged by the second defendant in A.S.No.527/1996 on the file of this Court wherein a conditional order of stay of execution was granted. The failure to comply with the conditional order enabled the plaintiff to levy proceedings in execution for realisation of the amount due under the decree.

3. The decree was transmitted to the court of the Subordinate Judge of Irinjalakuda within whose jurisdiction the property of the first defendant was situated. The property extending to 38 cents was attached and brought to sale in E.P.No.302/2007 wherein the plaintiff himself bid the property after setting off the amount due under the decree. The amount due under the decree reckoning interest at 12% per annum was quantified at Rs.5,73,308/- on 15.9.2008 which was the date of auction. The said amount was permitted to be set off and the balance amount of Rs.26,792/- was deposited by the plaintiff on 23.9.2008 to make up the total sale price of Rs.6,00,100/-. It is not in dispute that the sale has since been confirmed by the execution court even though the property is yet to be delivered over to the auction purchaser. The Appeal Suit filed by the second defendant was eventually allowed in part varying post decree interest from 12% to 6% and confirming the decree in other aspects. The Appeal Suit was disposed of by judgment dated 30.11.2010 almost 15 years after the date of decree and two years after the date of auction.

4. The modified decree had a telling effect on the amount due under the decree on the date of auction sale and the same was reduced to Rs.4,37,482/- instead of Rs.5,73,308/- originally reckoned. This would mean that there was a deficit of Rs.1,35,836/-in the deposit of the sale price by the plaintiff after setting off the amount due under the decree. The plaintiff thereupon filed E.A.No.1171/2011 in E.P.No.302/2007 for permission to pay the differential sum of Rs.1,35,836/- to complete the sale. The plaintiff maintained that the sale was already confirmed and that the original decree has been affirmed in appeal varying interest only. The defendants on the other hand contended that the sale falls to the ground on account of the slight modification of the decree in appeal. The court below has by the order impugned dismissed E.A.No.1171/2011 filed by the plaintiff further directing fresh proceedings for sale in execution. This is impugned by the plaintiff in this Original Petition filed invoking the supervisory jurisdiction contending inter alia that Section 144 of the CPC cannot be applied.

5. I heard Mr. V.P. Raguraj, Advocate on behalf of the petitioner, Mr. Babu Joseph Kuruvathazha, Advocate on behalf of the first respondent and Mr. Shaji Thomas, Advocate on behalf of the second respondent. I had also the able assistance of Mr. K.G. Balasubramanian, Advocate who appeared as Amicus Curiae in this case on my request.

6. I should at the outset state that Section 144 of the CPC will not stricto senso apply as the same can be called in aid only on an application filed by the party entitled to the benefit of restitution. But here is a case w