JUDGMENT P.T. Raman Nayar, J. 1. On the 4th of December 1954 the plaintiff decree holders applied by E. P. 826 of 1954 for delivery of the property in suit in execution of the redemption decree they had obtained. Notice was ordered on this application for the 13th December and was returned with the endorsement that it was refused and therefore affixed. Service was presumably held sufficient and an ex parte order for delivery was made on 13-12-1954. Delivery was actually effected the following day, and, on 15-12-1954, the 5th defendant came forward with the application out of which the present appeal arises. In this application he prayed for: (1) a review of the order for delivery; (2) a cancellation of that order; and (3) for an order for re-delivery with mesne profits by way of restitution. The principal ground he alleged in support of this application was that he had no notice whatsoever of the execution application and that the return on the notice was false. He also alleged, apparently for the purpose of showing that he had a valid defence to the execution, that execution was barred by section 4 of the Travancore - Cochin Act VIII of 1950 and that, to come within the saving in the proviso to that section, the decree holders had falsely alleged waste and default of the rent. The court went into all the objections on the merits and holding that there was no service of the notice ordered on the execution application, that section 4 of Act VIII of 1950 applied to the case, that the proviso did not apply, and that the decree holders had obtained delivery by making false allegations in order to attract the proviso and thus induced the court to make a wrong order, directed re-delivery to the 5th defendant with mesne profits. From that order the 4th plaintiff appealed, and her appeal having been dismissed, she has come up with this second appeal. 2. The main complaint of Mr. Narayanan Nair for the appellant is that the first court has, in effect, passed a final order dismissing the execution application without actually rehearing it as required by Order XLVI1, rule 8 of the Civil Procedure Code. But, according to Mr. 2. The main complaint of Mr. Narayanan Nair for the appellant is that the first court has, in effect, passed a final order dismissing the execution application without actually rehearing it as required by Order XLVI1, rule 8 of the Civil Procedure Code. But, according to Mr. Govindan Nair for the respondent, that stage has not been reached, and all that the court has done is to make an order under Order XLVII, rule 4(2) granting the respondent's application for review. In other words, only the second of the three stages of a review described by Sir Lawrence Jenkins C. J. in Vadllal v Fulchand (ILR XXX Bombay 56) has been completed, and the third stage, namely, the stage of rehearing the case on the merits, that is to say, the stage contemplated by Order XLVII, rule 8 has still to commence. But, the moment an order granting an application for review is made, the original decree or order sought to be reviewed is vacated and there is thus a reversal giving rise to a claim for resolution under section 144 of the Code, or, if the view be taken that there is no reversal or variation within the meaning of that section, then under section 151. 3. If that be the correct position, namely, that no final order has been passed on the decree holder's application for delivery and that that application is yet to be reheard, the appellant can have no grievance on the score mentioned since there will be a rehearing of the application on the merits. Mr. Narayanan Nair is content to accept this position which I think is correct. Although the merits of the objections taken by the respondent to the delivery were so elaborately considered as to give the impression that they were being considered not merely for the purpose of ascertaining whether he had a prima facie defence, there was no rehearing of the execution application and no order dismissing that application. It is true that there was no note made as required by rule 8 of Order XLVII of the grant of the application for review, and no posting of the execution application for rehearing. But then I find a note made by the court in the execution application to the effect that it was to be brought up after the disposal of the application for review. But then I find a note made by the court in the execution application to the effect that it was to be brought up after the disposal of the application for review. It is therefore fairly clear that the court has not passed on to the third stage, and has not, as a consequence of its allowing the review application, passed a fresh order on the execution application. 4. It seems to me however that, whatever the court might have purported to do, what it really did was to make an order under Order XXI, rule 105 of the Code setting aside the ex parte order of delivery made by it on the execution application. It is true that this rule was introduced only on 9-5-1959 and was not in the Code when the 5th defendant's application for review was made so that his remedy at that time lay by way of review. But the rule had come into force before the court passed its order, and being a rule of a procedural character, it applied to the pending proceedings. Therefore, the order of the first court was, as I have already said in reality an order setting aside the ex parte order for execution, and it is now for it to appoint a day for the further hearing of the execution application. 5. Whether the order made by the first court be regarded as one under Order XXI, rule 105 or one under Order XLVII, rule 4(2) it is clear that no second appeal can lie even if it be that, regarded as an order under Order XLVII, rule 4(2), the grounds required by rule 7 for an appeal obtain. But the order made by the first court does not end there. It was a composite order made on a composite application seeking two reliefs, namely, a review of the order of delivery, and restitution consequential to the review. Both reliefs were granted by the order and it is only to the extent that the order is an order for restitution that both the first appeal and the second appeal could have been brought or entertained. The correctness or otherwise of that part of the order that grants the application for review does not therefore call for consideration. 6. Both reliefs were granted by the order and it is only to the extent that the order is an order for restitution that both the first appeal and the second appeal could have been brought or entertained. The correctness or otherwise of that part of the order that grants the application for review does not therefore call for consideration. 6. Whether the first court's order for a re-consideration of the matter be one under Order XXI, rule 105 or one under Order XLVII, rule 4(2), if the result of the order has been to set aside the order for delivery already made in favour of the decree holders, I find little difficulty in holding that there has been a variation, if not a reversal, of the order for delivery so as to attract section 144 of the Code and make the 5th defendant entitled to restitution under that section. When an ex parte decree is set aside under Order IX, rule 13, the authorities seem to be agreed that there can be restitution if the decree has meanwhile been executed, and the only difference of opinion seems to be whether restitution should be under section 144 or under section 151 of the Code. As I have already indicated, to my mind, section 144 applies, but, if it is really section 151 that applies, that is not going to help the present appellant for that would only deprive her of her right to appeal at all, the definition of a decree in section 2(2) of the Code being limited, so far as restitution is concerned, to restitution under section 144. 7. An order under Order XXI, rule 105 stands on the same footing as an order under Order IX, rule 13 because, in both cases, the Code expressly says that the decree or order, as the case may be, is set aside. The question then is whether on an application for review being granted under Order XLVII, rule 4(2), the original decree or order still stands or whether it is automatically vacated. Order XLVII does not expressly state that, on the application being granted, the original order or decree is set aside, but that seems to be the implication of rule 8 of the Order which says that, when an application for review is granted, the case has to be reheard. Order XLVII does not expressly state that, on the application being granted, the original order or decree is set aside, but that seems to be the implication of rule 8 of the Order which says that, when an application for review is granted, the case has to be reheard. For, it is difficult to conceive how, if the original order or decree finally disposing of a case, is to stand, there can be a rehearing of the case. On a mere consideration of the statutory provisions of Order XLVII, it would appear that the necessary result of the grant of an application for review is to vacate the order or decree already passed. 8. That would appear to be the trend of all the authorities cited before me save one, although the question was not considered in those cases for the purpose of determining whether restitution was permissible but for other purposes. That, however, should not make any difference on the question whether, on an application for review being granted, the original decree-or order still stands or is vacated. The leading case is Vadilal v Fulchand (ILR XXX Bombay page 56) where it is expressly laid down that, if an application for review is granted, the whole matter is reopened and there has to be a fresh decree. There is an exhaustive review of the case law up to 1923 in Gour v Nilmadhab (AIR 1923 Calcutta 113) a decision by Mookerjee and Rankin JJ where, after beginning with the leading case in Vadilal v Fulchand (ILR XXX Bombay page 56), and considering a number of cases following that decision, their Lordships say that those decisions are authority for the proposition that, when an application for review is granted, the decree previously made is vacated, an observation which they repeat in another form later on by saying that those cases justify the view that when an application for review is granted, the original decree ceases to exist. There are subsequent decisions in Shidramappa v Gurushantappa (AIR 1929 Bombay 183), Abdurahiman v. Imbichunny (1932 Madras 669) and Nayudamma v. Sivaraju (AIR 1943 Madras 515) reiterating the same position so that I think it might now be regarded settled beyond doubt that the grant of an application for review amounts to a vacating of the original order or decree. 9. 9. The only discordant note is struck by Achyut Vishnu v Tapibai (AIR 1924 Bombay 310) where a Division Bench held that the effect of granting an application for review is not to set aside the original order or decree but only to hold it in suspense. This is doubtless an attractive theory but scarcely accords with the provisions of Order XLVII or with the weight of authority. With great respect I find myself unable to adopt such a view. 10. The result is that the setting aside of the order for delivery in favour of the decree holders, whether by way of review, or under Order XXI, rule 105, having become final, the 5th defendant is entitled to obtain redelivery by way of restitution. The orders of the courts below are therefore correct and this appeal has to be dismissed. The appeal is accordingly dismissed with costs. 11. There is a memorandum of cross-objections regarding the quantum of mesne profits allowed, and with regard to this I find no reason to interfere with the cocurrent findings of the courts below. The memorandum of cross-objections also is dismissed with costs. 12. What now remains to be done is for the first court to re-hear the execution application, E.P.826 of 1954, after giving the 5th defendant an pportunity to state his objections thereto, and this I direct it to do within a month of its getting back the records.