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Judgment
Adami, J.—It is argued that the procedure followed in this case was wrong inasmuch as under Order 45, Rule 15 the respondents were bound to make the application to this Court as directed in that rule. In this point there is no merit.
It is merely a technical point and is met by the decision of the Full Bench of this Court in Balmukund Marwari Vs. Basanta Kumari Dasi and Another, , where it is held that proceedings for restitution, are not proceedings in execution. Order 45, Rule 15, will not, therefore, apply Section 144 of the CPC lays down that an application must be made before the trial Court and the respondents fully complied with the directions in that section. Though the respondents were unable to put before the trial Court a copy of the decree of the Privy Council, yet before the order was passed, the trial Court had been furnished with a copy of that order and there was no irregularity.
The next point taken is that the appellants are entitled to Rs. 10,000 being five per cent, compensation payable to the auction purchaser on the setting aside of the execution sale. In this point also there is no merit. The appellants themselves were decree-holders and auction purchasers and having failed in their suit, they cannot deprive the respondents of any part of the two lakhs of rupees, which they deposited.
The appeal is dismissed with costs.
Das, J.
I agree.