Govinda Menon, J.-In O. S. No. 84 of 1932 on the file of the Subordinate Judge’s Court of Vijayawada, the present appellant obtained a decree against the respondents and their father for a sum of money on foot of a mortgage and the mortgaged properties were brought to sale. The appellant herself became the auction-purchaser and deposited the amount that remained after setting off the decree amount due to her, in Court. This balance amount was Rs. 995-12-0 and it stood to the credit of the judgment-debtors. A third party, one Tirupathiah, had a decree against the judgment-debtors in S.C. No. 107 of 1932 and in pursuance of that decree he attached the amount in Court to the credit of the judgment-debtors and drew out that sum in part satisfaction of his decree. Later on, the judgment-debtors applied under section 23 of the Madras Agriculturists Relief Act, 1938, to have the sale set aside and the same was accordingly set aside. The result was that the appellant, who had purchased the properties in Court auction, lost them, but the decree which she had against the judgment-debtors respondents was executable.

The suit out of which the present appeal arises was for recovery of the excess amount deposited by the plaintiff in Court to the credit of the judgment-debtors and taken over by Thirupathiah the decree-holder in S.C. No. 107 of 1932, on the ground that the judgment-debtors had benefit of that amount by reason of the fact that the claim against them in S.C. No. 107 of 1932 was satisfied by this amount being taken over by Thirupathiah. It has also to be stated that the respondents filed I A. No. 379 of 1942 in S.C. No. 107 of 1932 alleging that by reason of the withdrawal of the sum of Rs. 995-12-0 by Thirupathiah the decree-holder in S.C. No 107 of 1932, more than double the principal amount had been paid up and that the decree in that suit must be entered up as satisfied. After enquiry, satisfaction of that decree was also entered up.

Various contentions were raised by the defendants against the maintainability of the suit and the trial Judge found that though the suit is not maintainable under section 24 of the Madras Act IV of 1938, the appellant is entitled to equitable relief against the judgment-debtors, because the decree against them was satisfied by the withdrawal of this amount by the decree-holder Tirupathiah. The learned District Munsif went into the question and found that the respondents had the benefit to the extent of a sum of Rs. 683-1-5 and to that extent they are bound to repay the same to the plaintiff-appellant. A decree for that amount with interest thereon was passed. The plaintiff not being satisfied with the decree for Rs. 683-1-5, preferred an appeal to the Subordinate Judge complaining that the decree should have been for the entire amount of Rs. 995-12-0 with interest etc. and the defendant filed a memorandum of cross-objections objecting to the decree of the District Munsif to the extent of Rs. 683-1-5. The lower appellate Court was of opinion that the plaintiff had no cause of action against the defendants and that the equitable relief granted was not sustainable. The appeal was therefore dismissed and the memorandum of cross-objections allowed. The present second appeal by the plaintiff is against this decision of the Subordinate Judge.

It has to be mentioned at the very outset that Thirupathiah, the decree-holder in S.C. No. 107 of 1932, was not made a party to the suit; nor was he made a party to the proceedings by which the plaintiff applied under section 24 of the Madras Agriculturists Relief Act for a refund of the purchase money when the sale was set aside under section 23 of the Act. The order Exhibit P-4 shows that on the objection raised by the respondents when the plaintiff claimed refund of the purchase money, the executing Court held that the remedy of the plaintiff was a regular suit and not by means of execution proceedings. How far this order is correct need not be decided now though

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