The main legal point established in the judgment is that an application for restitution need not strictly conform to the form prescribed for an execution petition, and the court has discretion in determining the form and manner of restitution as per Section 144 of the Code of Civil Procedure.

Venkataramana Rao, J.

1. The question raised in this appeal is whether an application for restitution made by the appellants for recovery of a sum of money deposited by them into Court for setting aside a sale under Order 21, Rule 89 of the Code of Civil Procedure is sustainable. The plaintiff-respondent in this appeal filed a suit O.S. No. 440 of 1917 to recover a certain annuity from and out of the property in the Schedule annexed to the plaint filed by him. The properties were owned by the third defendant from whom the first defendant purchased; and he in turn sold them to the second defendant. A decree was passed in the suit in favour of the plaintiff directing among other things payment of the amount by sale of the properties Pending the suit the said properties appear to have been purchased by the appellants from the second defendant. In consequence of the said decree in the above suit the properties were brought to sale and purchased by the plaintiff-decree-holder. The appellant made an application to set aside the sale under Order 21, Rule 89, Civil Procedure Code, by depositing the amount of the decree into Court and the sale was accordingly set aside. This was in or about June, 1921. Against the decree in the said O.S. No. 440 of 1917 an appeal was preferred by the defendants and the decree in favour of the plaintiff was reversed in A.S. No. 186 of 1920 on the file of the District Court, Salem. This was on the 2nd of November, 1921. In consequence of the said decision the appellants filed E.A. No. 74 of 1922 on the 12th January, 1922, for restitution of the monies they deposited into Court. The application was dismissed on the 4th April, 1922. But on appeal the said order was reversed and the appellants were declared entitled to restitution. This was in or about 7th April, 1924, and against this order C.M.S.A. No. 2 of 1925 was preferred to the High Court. Pending these proceedings against the decision in A.S. No. 186 of 1920, S.A. No. 276 of 1922 was preferred to the High Court by the plaintiff. On 12th February, 1925, the High Court reversed the decree of the appellate Court in A.S. No. 186 of 1920 and restored the decree in O.S. No. 440 of 1917. Against this decree a Letters Patent Appeal was preferred being L.P.A. No. 98 of 1925 on the file of the High Court, and on 29th November, 1927, the Letters Patent Appeal was allowed and the result of the decision therein was that the decree of the appellate Court in A.S. No. 186 of 1920 was restored and the plaintiffs suit dismissed. It may also be stated that the C.M.S.A. No. 2 of 1925 was also disposed of and the same was dismissed on the same date. On the 19th November, 1928, the decree in the Letters Patent Appeal was amended as the cause-title was found to be defective in that the names of the legal representatives of the first defendants representative were not in the cause-title of the decree as drafted but the name of the first defendant, a dead man, was retained in the decree as originally drafted. Within three years from this date the appellants filed E.A. No. 611 of 1931 claiming restitution of the amount deposited by them with interest. They prayed that the Court may be pleased to grant restitution and direct the plaintiff respondent to pay the petitioner the amount with subsequent interest. The District Munsiff dismissed the application on the ground that the application is unsustainable in that there was already an order for restitution made in E.A. No. 74 of 1922 and the same prayer cannot be asked for again, and further that there was "no prayer for execution". On appeal from this decision the learned District Judge summarily dismissed the appeal on the ground that an order for restitution had already been made and it is an executable order and further the Court must be moved in the appropriate way, and that is, by an execution petition. Against this order the present second appeal has been preferred.

2. It is contended by Mr. Sitarama Rao that both