The grant of an application for review amounts to a vacating of the original order or decree, and the party entitled to restitution under section 144 of the Code.

P.T. Raman Nayar, J.

1. On the 4th of December 1954 the plaintiff decree holders applied by E. P. 826 of 1954 for delivery of the property in suit in execution of the redemption decree they had obtained. Notice was ordered on this application for the 13th December and was returned with the endorsement that it was refused and therefore affixed. Service was presumably held sufficient and an ex parte order for delivery was made on 13-12-1954. Delivery was actually effected the following day, and, on 15-12-1954, the 5th defendant came forward with the application out of which the present appeal arises. In this application he prayed for:

(1) a review of the order for delivery;

(2) a cancellation of that order; and

(3) for an order for re-delivery with mesne profits by way of restitution.

The principal ground he alleged in support of this application was that he had no notice whatsoever of the execution application and that the return on the notice was false. He also alleged, apparently for the purpose of showing that he had a valid defence to the execution, that execution was barred by section 4 of the Travancore - Cochin Act VIII of 1950 and that, to come within the saving in the proviso to that section, the decree holders had falsely alleged waste and default of the rent. The court went into all the objections on the merits and holding that there was no service of the notice ordered on the execution application, that section 4 of Act VIII of 1950 applied to the case, that the proviso did not apply, and that the decree holders had obtained delivery by making false allegations in order to attract the proviso and thus induced the court to make a wrong order, directed re-delivery to the 5th defendant with mesne profits. From that order the 4th plaintiff appealed, and her appeal having been dismissed, she has come up with this second appeal.

2. The main complaint of Mr. Narayanan Nair for the appellant is that the first court has, in effect, passed a final order dismissing the execution application without actually rehearing it as required by Order XLVI1, rule 8 of the Civil Procedure Code. But, according to Mr. Govindan Nair for the respondent, that stage has not been reached, and all that the court has done is to make an order under Order XLVII, rule 4(2) granting the respondent's application for review. In other words, only the second of the three stages of a review described by Sir Lawrence Jenkins C. J. in Vadllal v Fulchand (ILR XXX Bombay 56) has been completed, and the third stage, namely, the stage of rehearing the case on the merits, that is to say, the stage contemplated by Order XLVII, rule 8 has still to commence. But, the moment an order granting an application for review is made, the original decree or order sought to be reviewed is vacated and there is thus a reversal giving rise to a claim for resolution under section 144 of the Code, or, if the view be taken that there is no reversal or variation within the meaning of that section, then under section 151.

3. If that be the correct position, namely, that no final order has been passed on the decree holder's application for delivery and that that application is yet to be reheard, the appellant can have no grievance on the score mentioned since there will be a rehearing of the application on the merits. Mr. Narayanan Nair is content to accept this position which I think is correct. Although the merits of the objections taken by the respondent to the delivery were so elaborately considered as to give the impression that they were being considered not merely for the purpose of ascertaining whether he had a prima facie defence, there was no rehearing of the execution application and no order dismissing that application. It is true that there was no note made as required by rule 8 of Order XLVII of the grant of the application for review, and no posting of the execution application for rehearing. But then I find a note made by the court in the execution application to the