A person who has suffered any loss by reason of the decree or order can only claim restitution on the reversal or variation of the decree or order.

G. B. PATNAIK, J.

( 1 ) THE short question that arises for consideration in the present Second Appeal is whether the decree of the trial Judge passed in T. S. No. 26 of 1967 can be said to have been modified or varied in Second Appeal No. 54/ 75 by which judgment this Court did not interfere with the decree directing refund of consideration money but reduced the rate of interest from 12 per cent to 6 per cent. The aforesaid question crops up for consideration in view of the order of restitution passed under Section 144, C. P. C. Section 144, C. P. C. is extracted hereinbelow in extenso:"144. Application for restitution. (1) Where and in so far as a decree or an order is varied or reversed in any appeal, revision or other proceeding or is set aside or modified in any suit instituted for the purpose, the Court which passed the decree or order shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree or order of such part thereof as has been varied, reversed, set aside or modified and, for this purpose, the Court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly consequential on such variation, reversal, setting aside or modification of the decree or order. Explanation- For the purpose of subsection (1), the expression "court which passed the decree or order" shall be deemed to include- (a) where the decree or order has been varied or reversed in exercise of appellate or revisional jurisdiction, the Court of first instance; (b) where the decree or order has been set aside by a separate suit, the Court of first instance which passed such decree or order; (c) where the Court of first instance has ceased to exist or has ceased to have jurisdiction to execute it, the Courts which, if the suit wherein the decree or order was passed were instituted at the time of making the application for restitution under this section would have jurisdiction to try such suit. (2) No suit shall be instituted for the purpose of obtaining any restitution or other relief which could be obtained by application under sub-section (1 ). "in view of the expression "varied or reversed" used in Section 144 (1) which would entitle a Court to entertain an application for restitution and pass appropriate orders thereon, the aforesaid question has arisen for consideration.

( 2 ) 1. 60 acres of land appertaining to survey No. 277/2 in Mouza Purusottampur was purchased under a registered sale deed dated 25-4-1967 by the plaintiffs in T. S. 26/ 67 for a consideration of Rs. 4000/ -. When they attempted to take possession of the land, defendants 2 and 3 resisted and, therefore, the plaintiffs filed T. S. 26/67 on 11-8-1967 for recovery of possession of the property or in the alternative for recovery of consideration amount which the plaintiffs had paid to defendant No. 1. The Subordinate Judge found the title of the property with defendants 2 and 3 but on the finding that the plaintiffs had paid the consideration amount of Rs. 4000/-to defendant No. 1 decreed the suit granting alternative relief of refund of consideration money together with interest at the rate of 12 per cent per annum from the date of the decree. The judgment in the suit was delivered on 27-10-1973. The plaintiffs then levied execution on 9-2-1974 for realisation of the decretal amount being Execution Proceeding No. 1 / 74. The judgment of the learned Subordinate Judge in T. S. 26/ 67 was assailed in appeal by defendant No. 1 in T. A. 3/74. The appellate Court stayed the execution proceeding in E. P. No. 1 / 74 by order dated 10-4-1964 subject to the condition that defendant No. 1 would furnish personal security to the extent of Rs. 4000/-to the satisfaction of the Subordinate Judge and will pay cost accrued in