JUDGMENT Harries, J. - This is an appeal by one Bhawani Shankar against a decision of the learned Second Civil Judge of Cawnpore, dated the 25th May, 1935, allowing an application of the Respondent Mahmud Ali u/s 144, Code of Civil Procedure, for restitution of a certain property. The learned Second Civil Judge acceded to the application, hence the appeal of the objector Bhawani Shankar. 2. The facts of the case in so far as they are material to this application can be shortly stated as follows: On the 12th February, 1917, one Fazal Ali mortgaged certain property by a conditional sale to the applicant and others. On the 28th April, the applicant together with one Durga Prasad filed a suit No. 15 of 1928, to enforce the mortgage By this time Fazal Ali had died and the suit was brought against his heirs, some of whom were major and some minor. The present Respondent Mahmud Ali was a major whereas his brother and sisters were minors. The minors were represented by a guardian ad litem and eventually the suit was compromised and a decree passed in terms of the compromise. The full terms of the compromise have not been placed before me but it would appear that the compromise was very favour able to the mortgagees who obtained possession of the mortgaged property. 3. By the year 1934 Masood Ali, a brother of the Respondent Mahmud Ali attained his majority. He consequently filed a suit No. 37 of 1934 claiming that the mortagage decree was not binding on him and therefore that he was entitled to one fifth of the property which the mortgagees had obtained under the compromise and the decree passed in accordance with it. A similar suit No 34 of 1934 was filed on behalf of Masood Ali's two minor sisters and in that suit they also claimed one-fifth of the property in question. 4. These two suits were eventually decreed and possession given to Masood Ali of one fifth of the property and possession of another one fifth share of the property was given to his two minor sisters. In those suits allegations of fraud and collusion had been made but these allegations were they not to be proved. 4. These two suits were eventually decreed and possession given to Masood Ali of one fifth of the property and possession of another one fifth share of the property was given to his two minor sisters. In those suits allegations of fraud and collusion had been made but these allegations were they not to be proved. The learned Judge who decided the case however held that the interest of these minors had not been properly safeguarded m the original mortgage suit and that the compromise was not in their interest, and he, therefore, held that the decree did not bind these persons and that they were entitled to possession of the shares which they claimed. 5. The present Respondent, Mahmud AH was not a party to these suits brought by Masood All and his sisters but he now alleges that the effect of the decrees passed in those suits was to nullify and set aside the whole of the mortgage decree which was passed in the terms of the compromise. Consequently he claims that he also is entitled to his share in the property and has not obtained such share. He made an application u/s 144, Code of Civil Procedure, alleging that the decree in the mortgage suit had been reversed and that he was entitled to restitution of the property which had passed to the mortgages under that decree. He does not contend that this decree has been reversed by a Court of superior jurisdiction but what he says is that the effect of the subsequent decrees is to destroy altogether the first decree. In short after the two subsequent decrees the first decree became an absolute nullity. 6. The present Appellant took an objection to this application and the matter was considered by the learned Second Civil Judge of Cawnpore. He came to the conclusion that this was a proper application u/s 144 and held that Mahmud Ali Was entitled to his share of the property which had passed to the mortgagees by virtue of the decree. He, therefore, granted the application and directed that Mahmud Ali should be put in possession of his share of the property. 7. He came to the conclusion that this was a proper application u/s 144 and held that Mahmud Ali Was entitled to his share of the property which had passed to the mortgagees by virtue of the decree. He, therefore, granted the application and directed that Mahmud Ali should be put in possession of his share of the property. 7. Against that decision this appeal has been brought and it has been argued that whatever merit the claim of Mahmud Ali may have such a claim cannot be decided by a Court u/s 144 of the Code of Civil Procedure. It has been contended that even if the subsequent decrees could be said to have varied or reversed the original decree yet Mahmud Ali could not obtain restitution under this section. 8. It is not necessary for me to express any opinion as to whether or not these subsequent decrees can be said to have varied or made null and void the original mortgage decree. That is a matter which may be the subject of litigation hereafter and that being so I express no opinion upon it because it is not necessary to decide that fact to dispose of this appeal. In my view even assuming that these subsequent decrees did vary or nullify and avoid the original mortgage decree yet the Respondent Mahmud Ali could not possibly obtain restitution u/s 144, Code of Civil Procedure. 9. Section 144, Code of Civil Procedure, provides: (1) Where and in so far as a decree is varied or reversed, the Court of first instance 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 such part thereof as has been varied or reversed... (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). 10. From the wording of this section it is in my judgment clear that in order to obtain restitution the applicant must establish that the decree under which he was compelled to part with his property was varied or reversed by a Court which had jurisdiction to vary or reverse the decree. 10. From the wording of this section it is in my judgment clear that in order to obtain restitution the applicant must establish that the decree under which he was compelled to part with his property was varied or reversed by a Court which had jurisdiction to vary or reverse the decree. Further the use of the phrase "Court of first instance" contemplates that the variation or reversal of the decree is made by a superior Court. In my judgment this section clearly applies where a decree has been reversed or varied upon appeal, revision or by a review. Where the consequences of a decree have been affected by a subsequent decree passed in another suit, there has been no variation or reversal of the earlier decree within the meaning of this section. Courts of equal jurisdiction cannot reverse or vary each other's decrees, although in a suit a Court might hold that an earlier decree passed by another Court is not binding upon the Plaintiff before it by reason of fraud, collusion or other cause. In my view Section 144 contemplates the reversal or variation of a decree by a Court competent to do so. 11. There is no express decision upon this section in this Court, but the matter was referred to in the judgment in the Full Bench case of Bindeshri Prasad Tiwari v. Badal Singh (1923) 45 All. 369 (F.B.). The learned Judges at page 372 observe: The question whether the application comes u/s 47 or 144 of the CPC is one of some difficulty. The words "varied or reversed'' used in Section 144 seem more applicable to a proceeding by way of appeal, revision or review than to a separate suit declaring that a decree is not binding on a particular party. 12. As I have stated that is not a definite decision but it is the opinion expressed by three learned Judges of this Court who constituted that Bench, although that opinion was perhaps not strictly necessary for the decision of the case before them. The matter does not rest there however because this section has been considered by the Patna High Court in a number of recent cases- See Chintaman Singh v. Chuni Sahu (1916) A I R 1916 Pat. 299, Ram Ratan Prasad and Others Vs. Banarsi Lal and Others, AIR 1930 Patna 280 and Hemendra Chandra Mullick Vs. The matter does not rest there however because this section has been considered by the Patna High Court in a number of recent cases- See Chintaman Singh v. Chuni Sahu (1916) A I R 1916 Pat. 299, Ram Ratan Prasad and Others Vs. Banarsi Lal and Others, AIR 1930 Patna 280 and Hemendra Chandra Mullick Vs. Ballavi Devi and Another, AIR 1933 Patna 564 in which the same view was taken. 13. A similar view has also been expressed by the Calcutta High Court- See Ashutosh Nandi and Another Vs. Kundal Kamini Dasi and Others, AIR 1929 Cal 814 and Gopal Paroi Vs. Swarna Bewa, AIR 1931 Cal 14 14. In a recent case of this Court, Amba Lal v. Ram Gopal Madho Prasad (1933) 1 A W R 1 this section was considered by a Bench of this Court but they expressly refrained from expressing any opinion as to whether or not Section 144 applied to cases where an earlier decree had been affected by another decree passed in a separate suit. Having regard to the cases decided in other High Courts and the expression of opinion in the Full Bench case of this Court, Bindeshri Prasad v. Badal Singh1 to which I have referred I am bound to hold that Section 144 CPC cannot apply to the facts of this case because there has been no variation or reversal of a decree as contemplated by that section. That being so, the decision of the learned Second Civil Judge cannot be sustained. 15. It has been urged however by Dr. Faruqi that even if it is held that this application for restitution could not be made u/s 144, the Court could order restitution u/s 151 CPC by virtue of its inherent powers. It is clear that the Court did not purport to act u/s 151 CPC and in my view could not act under that section in this case. That section can only be invoked where restitution cannot be obtained in any other way. No such case has been made out. 16. As I have stated previously I express no opinion as to the rights of Mahmud Ali if he takes other proceedings to obtain possession of this property. That section can only be invoked where restitution cannot be obtained in any other way. No such case has been made out. 16. As I have stated previously I express no opinion as to the rights of Mahmud Ali if he takes other proceedings to obtain possession of this property. All I hold in this case is that proceedings u/s 144 CPC were misconceived and the learned Judge had no right to make the order which he did under that section. In the result therefore this appeal must be allowed and the order of the learned Second Civil Judge set aside. The Appellant must have costs of this appeal and of the proceedings in the Court below.