JUDGMENT Yorke, J. - This is a second execution appeal arising out of an order for restitution u/s 144 of the Civil Procedure Code,. The matter has arisen in the following circumstances. 2. On the 28th February, 1924, the father of the decree-holders Appellants obtained a preliminary decree for sale on a mortgage against Muhammad Taqi Khan and his wife Mst. Rnhmat Khatun and other Defendants. On the 15th November, 1926, the sons of Mulchand got a final decree for sale for Rs 5,538-2-11. This decree was put into execution on the 6th July, 1928, but the application was dismissed the same day. The next application for execution was the one which has given rise to the present appeal This was made on the 25th August, 1931, at a date when the application was prima facie time barred, but an extension of limitation was claimed on the ground of certain payments and acknowledgments made by some of the judgment-debtors. At a late stage in the proceedings on the 20th May, 1932, Md. Taqi and some other judgment debtors filed an objection that the application for execution was barred by limitation. This was made only seven days before the mortgaged property was sold on the 27th May, 1932. On the 25th June, 1932, Md. Taqi and his wife Mst. Rahmat Khatun deposited in Court Rs. 3,138-10-0, the total amount outstanding with the necessary 5 per cent. for the auction purchaser, and prayed under O. 21, r. 89 that the sale be set aside. Assuming that the amount deposited was sufficient the Court to which this application was made had no option but to set aside the sale and in fact to dismiss the application for execution in full satisfaction of the decree. The execution Court, however, proceeded with the consideration of the objection on the question of limitation, and on the 8th December, 1932, it dismissed the objection and it also set aside the sale as the necessary deposit under O. 21, r. 89 had been made. In due course on the 23rd December, 1932, the decree-holders withdrew from Court the amount deposited for their benefit on the 25th June, 1932. The judgment-debtors, Respondents in the present appeal, appealed against the order dismissing the objection relating to limitation and this appeal was dismissed by the District Judge on the 6th October, 1933. In due course on the 23rd December, 1932, the decree-holders withdrew from Court the amount deposited for their benefit on the 25th June, 1932. The judgment-debtors, Respondents in the present appeal, appealed against the order dismissing the objection relating to limitation and this appeal was dismissed by the District Judge on the 6th October, 1933. A second appeal was filed in this Court and the matter came ultimately before a Full Bench which held that so far as the application for execution was made against Md. Taqi Khan and Mst. Rahmat Khatun it was barred by limitation. The decision is reported in Mohammad Taqi Khan v. Raja Ram 1936 AWR 996 (F. B.), in which it was held that an acknowledgment by payment was good only against the persons who made the acknowledgment and not against other judgment-debtors. 3. On the 11th August, 1939, Md. Taqi and Mst. Rahmat Khatun made an application for restitution u/s 144 C P. C in respect of the amount deposited by them under O. 21, r. 89. This application was opposed, but on the 2nd September, 1939, the executing Court, that is the Civil Judge, made an order for restitution and for refund of Rs. 3,138-10-0 plus Rs. 1,341 interest. Against this decision the decree-holders appealed to the District Judge of Farrukhabad who allowed the appeal in part only, ordei ing the refund to Md. Taqi and Mst. Rahmat Khatun not of the whole amount paid by them but only of their proportionate share with interest calculated on that proportion. Hence the present appeal. 4. The first point which is taken by Learned Counsel for the Appellants is that Section 144 has no application and therefore if this refund was ordered, as it purports to have been ordered, u/s 144, the order must be set aside. Hence the present appeal. 4. The first point which is taken by Learned Counsel for the Appellants is that Section 144 has no application and therefore if this refund was ordered, as it purports to have been ordered, u/s 144, the order must be set aside. Section 144 C. P.C. provides that :-- (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, 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 consequentil on such varati m or reversal. (2) No suit shill be instituted for the purpose of obtaining any restitution or other relief which could be obtained by application under sub-Section (1). 5. Now the position in the present case is clearly this. The decree which was reversed ultimately in appeal was the decree dismissing the objection that the application for execution was barred by limitation. The money deposited by the Respondents Md. Taqi Khan and Mst. Rahmat Khatun was certainly not money deposited under the decree which was affected by the order ultimately holding the execution application to have been barred by limitation as against Md. Taqi Khan and Mst. Rahmat Khatun. The money was deposited in Court specifically under the provisions of O. 21, r. 89 long prior to the decision on the question of limitation. Prima facie therefore this was not a casa to which Section 144 was applicable. It is conceded that the provisions of Section 144 are not exhaustive and that a Court may make such an order u/s 151 Civil Procedure Code, . read with Section 144, but it is clear that that was not what was done in the present case. Prima facie therefore this was not a casa to which Section 144 was applicable. It is conceded that the provisions of Section 144 are not exhaustive and that a Court may make such an order u/s 151 Civil Procedure Code, . read with Section 144, but it is clear that that was not what was done in the present case. What the lower appellate Court has done is to make a kind of obiter dictum by saying: The Applicants clearly deposited the money in order to save their shares and as such Section 144 of the Civil Procedure Code, clearly relates to the facts of the case. 6. That is no answer whatever to the proposition that this was not a case in which the right to restitution arose out of a variation of the order under which or as a result of which the payment was made. It follows that prima facie this order of the lower appellate Court was a wrong order which must be set aside. 7. Learned Counsel for the Appellants has further contended that even if this was a case to which Section 144 was applicable it was not a case in which the money was repayable, and he further pressed the point that in any case as the deposit was made under 0. 21, r. 89 that deposit was unconditional and therefore also the money was not repayable. On his second point his contention was that limitation barred the remedy but not the right. He contended that the debt was still in existence although as a result of the decision of the Full Bench it was no longer possible for the decree-holders to enforce it against the judgment-debtors Md. Taqi and Mst. Rahmat Khatnn, his wife. His argument was that this money was paid into Court for the benefit of the decree-holders and that having been paid into Court for their benefit and having been paid to them, they were entitled to appropriate it to the debt which still subsisted. The proposition of Jaw that the creditor is entitled to appropriate monies received from his debtor towards any subsisting debt of that debtor is not contested. Learned Counsel for the Appellants has referred to a number of cases, but I do not think that it is necessary to reproduce them or discuss them. 8. The proposition of Jaw that the creditor is entitled to appropriate monies received from his debtor towards any subsisting debt of that debtor is not contested. Learned Counsel for the Appellants has referred to a number of cases, but I do not think that it is necessary to reproduce them or discuss them. 8. That proposition which is prima facie sound was met by the contention that this was an enforced payment and the money therefore was refundable. In this connection I must refer to certain cases quoted by Learned Counsel for the Respondents which deal with the right of recovery of monies paid under duress. Learned Counsel for the Respondents relied upon a decision of Their Lordships of the Privy Council in Fatima Khatoon Chowdrain v. Mahomed Jan Chowdry (l868) 12 Moo.l. A. 65. In that case in order to save a family estate about to be sold under a decree of Court made in a suit agninst one member of the family, other members interested in the property, being entitled to dower charged on the estate, paid the amount decreed into Court to be handed over to the decree-holder under protest of their respective lights in the estate, and subject to a suit to be brought by them to set aside a summary order rejecting a claim to their charge on the estate The money so deposited was taken out of Court by the decree-holder. In an action to recover back the amount it appeared that the decree-holder had no right to proceed against such part of the estate as belonged to the parties paying the money into Court Held, that an action would lie against the decree-holder to recover the amount so paid into Court and handed over to him as it was a deposit under protest to prevent an injurious sale. 9. This case has also been relied upon in connection with the third point. 10. Reliance was also placed upon another decision of Their Lordships of the Privy Council in Dulichand v. Ram-kishen Singh (1881) 7 Cal. 648 (P.C.). The headnote runs as follows: A mortgagee of two separate properties became by purciase the owner of the equity of redemption of one of them, and of this property the value was so proportioned to his payments that the mortgage debt was in effect satisfied. 648 (P.C.). The headnote runs as follows: A mortgagee of two separate properties became by purciase the owner of the equity of redemption of one of them, and of this property the value was so proportioned to his payments that the mortgage debt was in effect satisfied. This mortgagee, however, obtained a decree and order in execution for the sale of the other property on which his mortgage was the second. Of the latter property, the Plaintiffs, who also represented the first mortgagee, had become purchasers, and they filed objections to the sale. These were disallowed and they thereupon paid into Court money sufficient to satisfy the decree in order to prevent the sale. Held, that this was no! a voluntary payment, nor a payment of money equitably due, but one made under compulsion of law, i. e., under pressure of the execution proceedings. And held that this might be recovered in a Suit for a money decree, the remedy not being confined to the execution proceedings. 11. In this case there were two ratios, one was that the payment was not a voluntary payment, the other is not mentioned in the head note but appears at page 653 where it is said in reference to Defendant No. 1. He has, therefore, received it (the payment of the debt) twice over, and it is obvious that, in such a case, it is inequitable that he should hold the money paid to him, under compulsion, by the Respondents 12. Their Lordships remarked at the close of the judgment On the whole case, they agree with the Courts below though not altogether on the same grounds, that the Plaintiffs are entitled to suceed in the action. 13. No doubt this also is a case of payment held to be payment under compulsion and the Plaintiffs debtors were held to be entitled to recover their money by means of a suit, but it is questionable whether the fact of compulsion was the main, much less the sole ratio. 14. A third decision of Their Lordships reported in Kanhaya Lal v. National Bank of India, Ltd. (1913) 40 I.A. 56 : 11 A.L.J. 413 : 40 Cal. 598 (P C), has also been relied upon. 14. A third decision of Their Lordships reported in Kanhaya Lal v. National Bank of India, Ltd. (1913) 40 I.A. 56 : 11 A.L.J. 413 : 40 Cal. 598 (P C), has also been relied upon. This was a case in which the Defendants had attached property belonging to a third party The third party was compelled, in view of the loss to which he would be subjected by the continuance of the attachment and the long time which might elapse before he could obtain an order setting aside the attachment, to pay the amount due to the Defendant under the decree into Court under protest. In a suit brought for the return of the money so paid, and damages for the alleged illegal acts of the Defendant, the defence inter alia was that the suit as framed would not lie, and the case was argued on a preliminary issue, the proceedings being in the nature of a demurer. It was held (reversing the decision of the Courts India) that the Plaintiff was entitled to recover the money so paid as being an involuntary payment produced by coercion, namely, the wrongful interference of the Defendant with his full and free enjoyment of his own property. It was further said in the head note. The greater or less probability of a sale taking place did not affect the ratio decidendi in that case (i e. Duli Chand's case referred to above) which is that the payment was made under the force of the execution proceedings, and that in India, as in England, such a payment is regarded by the law as being made under compulsion. 15. Their Lordships further remarked that the fact that another procedure was open to the Plaintiff if he had chosen to adopt it, in no way interfered with his right to take any other lawful alternative. 16. I think it would be difficult to say that the payments in any of these cases were payments made under O. 21, r. 89. It certainly does not appear from the reports that that was so. They were amounts certainly paid into Court under what was held to be legal compulsion in order to avert a sale, and doubtless in the present case the judgment-debtors Md. Taqi Khan and Mst. It certainly does not appear from the reports that that was so. They were amounts certainly paid into Court under what was held to be legal compulsion in order to avert a sale, and doubtless in the present case the judgment-debtors Md. Taqi Khan and Mst. Rahmat Khatun might have made a payment into Court accompanied by an application for a stay of the sale or a stay of confirmation of the sale. They have however chosen instead to wait till the last moment and to make their application under O. 21, r. 89. Learned Counsel for the Respondents treated all these cases as if they were cases of applications under O. 21, r. 89 and as if an application under that rule could be treated as an application made under compulsion. On the other hand reliance has been placed for the Appellants on a number of decisions in which it has been held that an application under O. 21 r 89 is a matter which is at the option of the Applicant,. that such an application is and must be unconditional and that the money cannot be deposited under pretest. It is an application of a very special kind leading, if it is sufficient to comply with the requirements of the decree, to the immediate setting aside of the sale. In this connection reference has been made to a number of cases. 17. The first is Narayan Vasudevacharya Katti Vs. Amgauda Malagauda Patil, AIR 1921 Bom 169 . The head note runs as follows: In execution of a decree obtained by the Defendant against a third party, the property was sold and purchased by the Defendant. The Plaintiff who claimed to be the owner of the property protested against the Sale and ultimately got it set aside under O. 21, r. 89, Civil Procedure Code, , by paying into Court the decretal amount and five per cent., of the purchase money. The amount being given to the Defendant decree-holder and auction purchaser, the Plaintiff sued to get it refunded as having been involuntarily paid. Held, dismissing the suit, that under the terms of O. 21, r. 89, the amount must be taken to have been deposited for payment to the decree-holder voluntarily and unconditionally and therefore no suit could lie for its recovery 18. The head note reproduced remarks of both the learned Judges who decided the case. Held, dismissing the suit, that under the terms of O. 21, r. 89, the amount must be taken to have been deposited for payment to the decree-holder voluntarily and unconditionally and therefore no suit could lie for its recovery 18. The head note reproduced remarks of both the learned Judges who decided the case. It was held by MacLeod C.J. It seems to me that when it is expressly provided that the money (so paid into Court under O. 21 r 89) should be paid in for a particular purpose, such money could not be treated as assets held by a Court. Per Shah J.--"When an application to set aside the sale is made under O. 21, r. 89, and the amount required by the rule is deposited, it is obligatory upon the Court to set aside the sale, as provided by r. 92 sub-rule (2). The result of setting aside the sale is generally speaking in favour of the judgment-debtor. This result can be ensured by any person interested in the property by satisfying the c aims of the decree-holder and auction purchaser according to the provisions of the rule. I do not see how a person can be allowed to go back upon his own act and to claim the amount back from the decree-holder after he has secured the benefit of hairing the sale set aside. 19. That is they took the view that an application made specifically under this rule must be taken to be a voluntary and an unconditional application and could give no right to a refund. 20. This view was followed in Shankarrao Keshavrao Deshmukh Vs. Vadilal Mulchand Gujarati, AIR 1933 Bom 239 , in which it was held with reference to a deposit made under O. 21, r. 89 that The Plaintiffs were not entitled to recover the amount from Defendant No. 1 since the amount must be taken to have been deposited for payment to Defendant No. 1 voluntarily and unconditionally and that the Plaintiffs could not claim the amount back from the Defendant after the Plaintiffs had secured the benefit of.having the sale set aside. 21. The same view has been taken by the Madras High Court in several cases. The first relied upon is a single Judge case Unnaithanakath Puthan Veettil Kummakutty alias Kunhutti and Another Vs. 21. The same view has been taken by the Madras High Court in several cases. The first relied upon is a single Judge case Unnaithanakath Puthan Veettil Kummakutty alias Kunhutti and Another Vs. Munnodath alias Mangat Manakkal Karnavan and Manager, Neelakandan Nambudri, AIR 1930 Mad 921 . The head note runs as follows: Where a person other than the judgment debtor entitled to apply under O 21. r. 89 Civil Procedure Code, to set aside a sale in execution of a decree, applies and pays the amount specified in the rule, the Court has no jurisdiction to direct the decree-holder to execute a security bond for repayment of the amount to the Applicant in the evert of the latter succeeding in a suit instituted by him to establish his right to the property sold in execution. 22. The point was dealt with on page 947 where the learned Judge discussed the object and scope of O. 21, r. 89. He remarked. The Code in various sections lays down in what circumstances a judgment-debtor may contest the sale of his property. Similarly there are sections under which a person claiming adversely to a judgment-debtor may object to attachment and sale But O. 21, r. 89 enacts a special provision. Its object is to put an end to every kind of contention and dispute. The judgment-debtor is saved from the threatened deprivation of his property, the decree-holder's claim is satisfied and the auction purchaser is compensated. The section would be frustrated if the person paying money under it is permitted to do so under protest. Clause 2 of r. 89 enacts. Where a person applies under r. 90 to set aside the sale of his immovable property, he snail not, unless he withdraws his application, be entitled to make or prosecute an application under this rule. This shows that the two proceedings referred to in this clause are utterly incompatible. If the debtor wants to keep a dispute open, he cannot claim the benefit of this section. In fact this accords to him a special indulgence While he is thus favoured, care is taken to provide that the interests neither of the decree-holder nor of the purchaser are sacrificed. It follows from this that when the judjment-debtor pays the amount specified, he pays it unconditionally. In fact this accords to him a special indulgence While he is thus favoured, care is taken to provide that the interests neither of the decree-holder nor of the purchaser are sacrificed. It follows from this that when the judjment-debtor pays the amount specified, he pays it unconditionally. The payment followed by the order setting aside the sale has the effect of automatically extinguishing the decree debt. 23. It follows that such a payment which purports to be and is made under O. 21, r. 89 cannot be a payment which is made under protest or compulsion. 24. This case was considered and approved in L.A. Krishna Ayyar Vs. Arunachalam Chettiar, AIR 1935 Mad 842 , in which the learned Chief Justice discussed the Privy Council case of Kanhaya Lal v. National Bank of India Ltd. 4 and agreed that that case was a case of an owner of property in possession of it being dispossessed and making an involuntary payment to prevent dispossession. He went on to discuss the difference between such cases and cases of deposit under O. 21, r. 89 and about these he remarked: The deposit is made on the footing that there has been a valid sale and is made in satisfaction of the decree. In my view the reported cases where claimants made payments to avert sales of property and the payments were therefore payments made under coercion are of no real assistance in this case, the case ha was dealing with being one of a payment under O. 21, r. 89. He went on: The judgment-debtor or a person interested in the property cannot attach any condition to his deposit under 0.21, r. 89, and the Court cannot accept the deposit subject to any condition or protest.. Once the proper amount has been deposited in time by the person entitled to make the application, the Court has no option but at once to make the order setting aside the sale. In my judgment there can be no question of an application for restitution of a deposit which is made under the provisions of O. 21, r. 89, and I accordingly doubt whether it will be found open to the present Respondents to recover their money even if they should think fit to proceed by a suit, that is, assuming that a suit for the purpose is not time barred. On all counts it appears to me that the order of the lower appellate Court is a wrong order. Such an order was not justified by the provisions of Section 144 and in any case an order for refund of money deposited under 0.21, r. 89 is not an order which can be made on an application in restitution and probably not one which can be made even in a suit. I accordingly allow this appeal with costs, set aside the order of the lower appellate Court and direct that the application for restitution be dismissed entirely. The Appellants will be entitled to their costs in the two Courts below as well. Leave for Letters Patent Appeal is granted.