( 1 ) THIS is a Second Miscellaneous Appeal on behalf of the Objector No. 2 in a petition under Section 144 of the Code of Civil Procedure. The facts as they may be relevant for the present purpose are as follows:- ( 2 ) SAKHI Charan Saha, a tenant of the premises in suit instituted an Ejectment Suit No. 1883/54 against the sub-tenant, Subhas Chandra Saha and got an ex parte decree on the 23rd September 1954. The said tenant, Sakhi Charan obtained possession of the said premises with police help on the 12th April, 1955 in execution of the said decree for ejectment and two days later, he let out the said premises to Khushi Mohan Saha, the appellant before us. On the 25th April, 1955, Subhas, the former sub-tenant instituted proceedings under Order 9, Rule 13 of the C. P. Code for setting aside the ex-parte decree in the aforesaid ejectment suit. On 1st December, 1955 the application under Order 9 Rule 13 of the Code of Civil Procedure was allowed and the ex parte decree was set aside and the suit for ejectment was restored to file. On the 8th December, 1955 the former sub-tenant, Subhas field an application under Section 144 of the Code of Civil Procedure for restitution against Sakhi who obtained a decree for ejectment and which was later on set aside. On the 27th February, 1956 Khushi Mohan, the new sub-tenant, was added a party to the proceeding under Section 144 of the Code of Civil Procedure and thereafter Khushi Mohan filed objection. On the 22nd April, 1957, the Rent Controller passed an order under Section 16 (3) of the West Bengal Premises Tenancy Act at the instance of Khushi Mohan, the new sub-tenant declaring him to be the direct tenant of the landlord, Anadi; Khushi, Anadi and Sakhi Charan were parties to the said proceeding under Section 16 (3); but the former sub-tenant, Subhas Chandra was no party to that proceeding. On the 2nd August, 1957 Sakhi Charan's suit for ejectment was dismissed for non-prosecution. Thereafter, on 3rd September 1957, the application under Section 144 of the Code of Civil Procedure came up for consideration before the learned Judge, 3rd Court, Small Causes Court, Calcutta. On the 2nd August, 1957 Sakhi Charan's suit for ejectment was dismissed for non-prosecution. Thereafter, on 3rd September 1957, the application under Section 144 of the Code of Civil Procedure came up for consideration before the learned Judge, 3rd Court, Small Causes Court, Calcutta. ( 3 ) THE learned Judge stated that Khushi Mohan Saha was admittedly inducted as a sub-tenant on the 14th April, 1955 after the tenant got delivery of possession on the 12th April, 1955. The learned Judge held that the sub-tenant was not a legal representative of the tenant and it was doubtful whether he was a representative at all. The learned Judge referred to a decision in (1) 58 Cal 1070 and found Khushi Mohan to be a stranger to the decree and found that he acquired valuable rights as a sub-tenant. Also he acquired valuable rights by an Order of the Rent Controller by which he was up-graded to the status of a tenant. The learned Judge thought that the principle of restitution was based on the principles of natural justice and that this principle must be relaxed when it conflicts with other rules of equity. Such statement of law appears to me to be rather curious. However, on the finding that Khushi Mohan Saha was an innocent third party the petition was dismissed. The appeal Court however took a directly contradictory view. According to the Appeal Court, the most important question was whether Khushi Mohan Saha was a bonafide sub-tenant or was a mere name-lender to Sakhi Charan Saha and it found that the sub-lease of Khushi Mohan Saha was not proved nor the order of the Rent Controller by which Khushi Mohan Saha was alleged to have become direct tenant was bonafide and thereafter the appellate Court found that Khushi Mohan Saha was not a sub-tenant at all. Therefore, it allowed the petition. Against that order Khushi Mohan Saha the new sub-tenant has filed the present appeal. ( 4 ) MR. Apurbadhan Mukherjee in support of the appeal urges that no party adduced any evidence and the parties agreed in the trial Court that no evidence would be adduced. Mr. Mukherjee urges that it was admitted at the trial that Khushi Mohan inducted as a genuine sub-tenant; but the appellate Court decided completely against such admission. Mr. ( 4 ) MR. Apurbadhan Mukherjee in support of the appeal urges that no party adduced any evidence and the parties agreed in the trial Court that no evidence would be adduced. Mr. Mukherjee urges that it was admitted at the trial that Khushi Mohan inducted as a genuine sub-tenant; but the appellate Court decided completely against such admission. Mr. Mukherjee very much challenged the finding of the appeal Court that Khushi Mohan was a mere name-lender and had no interest in the property at all. According to Mr. Mukherjee, this finding is based on surmise and conjecture and not based upon evidence. Mr. Mukherjee further urged that Khushi Mohan at the date of the order under Section 144 of the Code of Civil Procedure was protected as a direct tenant of the landlord and has acquired independent right under the provision of the law and that right was sufficient to protect him against the application for restitution. Mr. Mukherjee urges that the order of the trial Court should be restored and the appeal should be allowed. Mr. Mukherjee referred to a decision reported in (1) 35 CWN 433 where it was held that a sub-tenant had independent right. Mr. Mukherjee further urged on the principle in the case of (2) Zain-ul-Abden that the sub-tenant Khushi having acquired another right in course of law as a direct tenant was protected and he ceased to be a representative of the decree-holder from the date of such declaration. ( 5 ) MR. Sengupta, on behalf of the respondent urged that the clear factual position was that possession was taken on the 12th April and Khushi Mohan was inducted on the 14th April and this completely proved the malafide nature of the transaction and the appeal Court found the same and it did nothing wrong. These two dates speak for themselves and it goes without saying that Khushi Mohan is nothing but a creature of the tenant, Sakhi Charan Saha. Further, Mr. Sengupta urges that the suit for ejectment being dismissed on 2nd August, 1957 Sakhi Charan, the plaintiff must be deemed never to have any right to take khas possession and if he took khas possession after the ex-parte decree and granted sub-lease, the interest of the sub-tenant will not be protected by law. Further, Mr. Sengupta urges that the suit for ejectment being dismissed on 2nd August, 1957 Sakhi Charan, the plaintiff must be deemed never to have any right to take khas possession and if he took khas possession after the ex-parte decree and granted sub-lease, the interest of the sub-tenant will not be protected by law. He referred to a decision in (3) 24 CWN 50 and also to two decisions reported in (4) 20 CWN 665 and (5) also at 667. Mr. Sengupta further urged that the order of the Rent Controller was not evidence and therefore that matter should not be taken into consideration in the present proceeding. But even if that order is taken into consideration, the order was passed on 22nd April, 1957 while the application under Section 144 of the Code of Civil Procedure was still pending. Therefore Khushi Mohan got himself elevated to the position of a direct tenant while the suit itself was pending as also while the proceeding under Section 144 was pending and therefore Khushi Mohan is not entitled to any benefit either as a sub-tenant or a direct tenant. ( 6 ) THE first question is whether Section 144 of the Code of Civil Procedure would apply. The application of Section 144 of the Code of Civil Procedure was not made on the reversal or on the modification of the decree of the trial Court by any Court of appeal. Restitution was applied for on the ground that the ex-parte decree was set aside under Order 9 Rule 13 of the Code of Civil Procedure. Section 144 of the Code as it now stands is where and so far as the decree or an order 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 order as has been varied. Hence, the section as it now stands, refers to all cases of variation or reversal of the decree including one by an order under Order 9, Rule 13 of the Code of Civil Procedure and is not limited to variation or reversal of a decree by a Court of appeal. Hence, the section as it now stands, refers to all cases of variation or reversal of the decree including one by an order under Order 9, Rule 13 of the Code of Civil Procedure and is not limited to variation or reversal of a decree by a Court of appeal. Hence, this point must be over-ruled and the decision of this Court supports the same view. I may refer to (1) 35 CWN 483 (Rajjab Ali Khan Talukdar v. Faku Bibi ). In the aforesaid case it was held by a Division Bench of this Court that although a decree was not varied or reversed by a superior Court the application lay inasmuch as the jurisdiction of the Court as to restitution is not limited to the terms of Section 144. I may with respect point out that Section 144 as it now stands, is not limited to cases where and so far as decree or an order is varied or reversed in appeal or in revision. It includes all cases where a decree is varied or reversed and therefore variation or reversal of a decree or order under Order 9 Rule 13 of the Code would come within the scope of Section 144 of the Code of Civil Procedure. If a decree is set aside by an order under Order 9 Rule 13 it is at lease varied. This point was not seriously urged by Mr. Apurbadhan Mukherjee and this is over-ruled. ( 7 ) THE next question is whether the applicant under Section 144 was "entitled to any benefit by way of restitution. " It is urged that the applicant was not so entitled. It is further urged that even if the applicant was entitled to any benefit by way of restitution "the Court could not place the parties in the position which they would have occupied but for the decree because Khushi came into possession and he was not in possession before and further Khushi was a third party sub-tenant. Finally, because Khushi being upgraded as a direct tenant could not at least from the date of such upgrading be considered to be a representative of the decree-holder Sakhi. Finally, because Khushi being upgraded as a direct tenant could not at least from the date of such upgrading be considered to be a representative of the decree-holder Sakhi. It is urged that as he was up-graded by an order under Section 16, sub-section (3) of the West Bengal Premises Tenancy Act of 1956 he lost his title as sub-lessee under Sakhi which he acquired on the 14th April, 1955 but acquired on 22nd April, 1957 a new right under Anadi, the superior landlord and he could not after such declaration of a direct tenancy be considered to be a representative of any party of the proceeding, namely of Sakhi. It is urged because of the order under Section 16 (3), the Court could not place the parties in the position they would have occupied but for the decree varied. ( 8 ) THE question to be considered is whether Khushi who was introduced as a sub-tenant was a representative of the decree-holder Sakhi and whether an order under Section 144 should be passed against Khushi because he was not a party to the suit but a third party. Mr. Apurbadhan Mukherjee has referred to the same very decision in (1) 35 CWN 483 between Rajjab Ali Khan Talukdar v. Faku Bibi. It was held in that case that no order for restitution could be made against the sub-lessee who was introduced after the decree by an act of decree-holder because the sub-lease was not created under the decree or as direct or immediate consequence of it and the sub-lessees being strangers to the litigation are in no sense legal representatives of the lessee. It was further observed that restitution could be had only in respect of matters done under the decree or as an immediate consequence of it. It was next held that the jurisdiction as to restitution under Section 144 can be exercised only against the original party or their legal representatives and not against strangers. This decision supports the proposition of Mr. Mukherjee. Mukherji, J. who delivered the judgment stated as follows :-"we have not been able to find any case excepting one to which we shall presently refer in which a more extended view has been taken of this duty and this obligation. This decision supports the proposition of Mr. Mukherjee. Mukherji, J. who delivered the judgment stated as follows :-"we have not been able to find any case excepting one to which we shall presently refer in which a more extended view has been taken of this duty and this obligation. " at page 487, Mukherji, J. observed :-"the general trend of decisions in this country, so far as the question of restitution is concerned, has proceeded upon a consideration of this duty on the part of the Court arising from this fact that property was taken in execution of its order or decree and of the obligation on the part of the party to the record, including, of course the representatives to restore property so taken". The word 'representatives' in the aforesaid paragraph would include Khushi as he was inducted as a sub-tenant. His rights as a direct tenant will be considered later. But the conclusion is at pages 489-490 as follows :-"sub-leases were created by Rajjab Ali Khan Talukdar not under the decree not as a direct or indirect consequence of the decree as the defendant's were strangers to the litigation and were in no sense legal representatives of Rajjabali, no order for restitution should have been made. " the observation at page 487 that representatives would be affected is contradicted by the observation at page 489 that only legal representatives would be so affected. However, at least three previous decisions of this Court have been pointed out by Mr. Sengupta. He has referred to a decision in (4) 20 CWN 665 between Satish Ch. Ghosh v. Rameswari Dassi where it was held as follows :-"the Court as a matter of policy has a tender regard for honest purchasers at sales held in execution of its decree though the decree may be subsequently set aside, where those purchasers were not parties to the suit and the decree had not been passed without jurisdiction. But the same measure of protection is not extended to purchasers who are themselves the decree-holders, nor can purchasers from such decree-holders claim that the Court owes them any duty or to be within the policy which prompts the extension of protection to strangers since they have bought from one whose title is liable to be defeated. But the same measure of protection is not extended to purchasers who are themselves the decree-holders, nor can purchasers from such decree-holders claim that the Court owes them any duty or to be within the policy which prompts the extension of protection to strangers since they have bought from one whose title is liable to be defeated. "their Lordships considered the matter at page 667 and observed as follows :-"the defeasibility of a decree-holder's title where the decree is ex parte is of such common occurrence that the plea of a purchaser for value without notice hardly applies. " this judgment makes it clear that third party purchaser from the decree-holder is not protected. ( 9 ) MR. Sengupta has referred to another judgment of this Court reported in 20 CWN 667 (Abdul Rahman v. Sarafat Ali ). In that case the decree was assigned and the assignee decree-holder purchased the property and it was held that the assignee from the decree-holder who purchased the property in execution of his own decree was in no better position than the assignor and the sale is set aside when the decree is set aside even when the decree-holder had sold the property to a stranger. This is another judgment which supports the argument of Mr. Sengupta. The third decision of this Court which was referred to by Mr. Sengupta is reported in (3) 24 CWN 50 (Sagore Mondal v. Mafizuddin Sardar) where it was held as follows :-"where the decree-holder is a purchaser at a sale in execution of a decree which is subsequently set aside, restitution must be made under Section 144 of the Code of Civil Procedure notwithstanding the decree-holder has subsequently to his purchase settled the land with a tenant. "mr. Sengupta then referred to the facts of the case now under discussion and states that in this case it is said the property has been settled with a tenant. The settlement, it is urged, cannot stand on a higher footing than the sale of the property itself as held in the cases cited above. This, it is urged, is a complete answer to the decision reported in (1) 35 CWN 483. It may now be observed that none of the three aforesaid decisions of this Court was brought to the notice of Mr. Mukherjee, J. who decided the case reported in 35 CWN 483. Mr. This, it is urged, is a complete answer to the decision reported in (1) 35 CWN 483. It may now be observed that none of the three aforesaid decisions of this Court was brought to the notice of Mr. Mukherjee, J. who decided the case reported in 35 CWN 483. Mr. Apurbadhan Mukherjee next urges if there is this difference of opinion the matter should be sent to a Division Bench and then to a Full Bench for setting the point at issue. I was inclined to send the matter to the Division Bench, but ex-parte decree was passed in 1954, possession was taken early in 1955, restitution application was filed in 1955 and for the last ten years that matter has been pending in one or another Court and in the meantime the suit for ejectment has been dismissed; if I send the matter to the Division Bench the matter would undoubtedly be delayed and the result may be disastrous to the parties and further it may be an instance of a case where justice being delayed has been defeated. But if the case cannot be distinguished and law requires that this divergence of opinion should be clarified by a Full Bench I would have no other alternative than to refer the matter to the Division Bench. But I am not inclined to do that for two reasons. There is some inherent distinction between the sub-lessees in the case reported in (1) 35 CWN 483 and the sub-lessees in the case reported in (3) 24 CWN 50 and further both the judgments owe their origin to a (2) case of Judicial Committee. Therefore, the question is regarding the interpretation of the judgment of the Judicial Committee. I refer to the judgment in the case of (5) Zainulabdin v. Ashgar Khan reported in 15 IA 12. ( 10 ) IF we refer to the facts in the case reported in (1) 35 CWN 483 we would find that the sub-lease was by an occupancy raiyat and therefore the sub-lessee would acquire not merely the rights which the lessor granted to him but he would have the rights of an under-raiyat which law granted to him under the statute. The decisions of this Court in (6) 8 CWN 454 (Baburam v. Mahendra), (7) 45 CWN 805 (Arun Kumar v. Durga Charan) that whenever there is a lease by a raiyat to another person for whatever purpose, the lessee becomes an under-raiyat and under-raiyat is protected from eviction by statute, namely, Section 48 (c) of the Bengal Tenancy Act and acquires independent right therein and he cannot be evicted except under the provision of law. Therefore, sub-tenant in the case in (1) 35 CWN 483 stands on a different footing from an ordinary tenant as in (3) 24 CWN the law grants to the former a better right and that law (Tenancy Act) would stand in the way of placing the parties or their representatives in the position they would have been placed but for the decree varied or reversed; an ordinary sub-lessee as in (3) 24 CWN would be entitled to no such protection under the Transfer of Property Act. True, that the decree being reversed the decree-holder's right would be gone and all rights under the decree would also be gone. But if the lessee under the decree-holder has acquired other good rights, those rights will not go with the decree. In such a case the lease may be considered to be granted by a person in possession but without title and the lease if he has acquired independent rights under the law will still be protected. I may refer to the case of (8) Benodelal Pakrashi reported in 20 Cal 708 (FB) where an occupancy raiyat, introduced by a person in possession having no title, was protected from eviction. The case in (1) 35 CWN may thus be distinguished from the case reported in (3) 24 CWN 50 I may incidentally mention that (8) Binodlal Pakrashi's case was considered by the Supreme Court in (9) 1952 SCR 775 (Mahabir Gope v. Harbans Narain Singh) and that case was not over-ruled by the Supreme Court and it was distinguished. ( 11 ) IF we refer to the case in (2) 15 IA 12 (Zainulabdin v. Ashgar Khan) the same distinction will appear. The Judicial Committee referred to Bacon's Abridgment and relied upon it. ( 11 ) IF we refer to the case in (2) 15 IA 12 (Zainulabdin v. Ashgar Khan) the same distinction will appear. The Judicial Committee referred to Bacon's Abridgment and relied upon it. It states: -"if a man recovers damages and hath execution by fieri facias and upon the fieri facias the Sheriff sells to a stranger a term of years and after the judgment is reversed, the party shall be restored only to the money for which the terms was sold and not to the terms itself because the sheriff had sold it by the command of the wish of fieri facias". Hence restitution will not operate to extinguish rights enacted by law which are not in consequence of the decree reversed. ( 12 ) I think Mukherji, J. , had very possibly the same point in mind. At page 487, Mukherji, J. quotes Section 144 and lays stress on the phrase "as far as may be". This implies that his Lordship made a distinction between cases where the parties may be placed in the same position which they held before and where they could not be so placed. In my opinion there is no real conflict between the decisions in (1) 35 CWN and the decisions in (4) 20 CWN and also in (3) 24 CWN. This distinction will reappear when I consider the next point. However the sub-tenant Khushi is in my opinion a representative of the erstwhile, decree-holder Sakhi and if restitution can be granted against Sakhi it shall also be granted against Khushi who was introduced by Sakhi and who has no better rights than Sakhi, the grantor of the sub-lease. This, however, is apart from his rights, if any, as a direct tenant. ( 13 ) MR. Apurbadhan Mukherjee urges even accepting that position, at or before the date of the order for restitution Khushi by operation of law lost his title and by operation of law acquired a new right and ceased to be a representative of the erstwhile decree-holder Sakhi. On the principles we have just considered Khushi acquired a right under Section 16 (3) of the West Bengal Premises Tenancy Act and such acquisition of right was independent of the decree which was reversed and therefore, Khushi, it is, urged, will be protected as he acquired distinct right under the order under Section 16 (3) of the said Act. On the principles we have just considered Khushi acquired a right under Section 16 (3) of the West Bengal Premises Tenancy Act and such acquisition of right was independent of the decree which was reversed and therefore, Khushi, it is, urged, will be protected as he acquired distinct right under the order under Section 16 (3) of the said Act. ( 14 ) MR. Sengupta however urges that such acquisition of right was during the pendency of the application for restitution and therefore the doctrine of "lis pendens" will apply. Mr. Mukherji that the doctrine of "lis pendens" as under Section 52 of the Transfer of Property Act will not apply. According to him, Section 52 refers to cases of Transfer inter vivos but upgrading of the sub-tenant by an order under Section 16 (3) is not a transfer inter vivos. It is by operation of law. Mr. Mukherjee says that Section 52 of that Act would not therefore apply. But the doctrine of lis pendens has been applied to cases where transfer is by operation of law and we shall presently consider this aspect of the matter. The other points urged by Mr. Mukherjee is that Khushi got the sub-tenancy on 14th April, 1955 long before the application for restitution and therefore the doctrine of lis pendens does not apply. I am afraid this argument cannot be accepted. We have already discussed the rights of Khushi as by the sub-tenancy dated the 14th April, 1955 and I have decided that the sub-tenancy of Khushi is not protected against the application for restitution by Subhas on the ground that Khushi is a representative of the decree-holder, Sakhi Charan whose decree was subsequently reversed. Therefore, there is no question of the sub-lease being affected by the doctrine of lis pendens. The sub-lease is not so affected; but the sub-lease is affected because of the claim for restitution under Section 144. ( 15 ) WE now consider whether the order for direct tenancy which was made on the 22nd April, 1957 would be affected by the doctrine of lis pendens. The sub-lease is not so affected; but the sub-lease is affected because of the claim for restitution under Section 144. ( 15 ) WE now consider whether the order for direct tenancy which was made on the 22nd April, 1957 would be affected by the doctrine of lis pendens. There is no doubt that this order under Section 16 (3) of the Act was passed after Subhas, the judgment debtor defendant filed the application for restitution on the setting aside of the ex-parte decree and there is no doubt that the order for direct tenancy was made during the pendency of that petition. The question is whether this right as direct tenant is affected by the doctrine of lis pendens. ( 16 ) MR. Sengupta urges that the doctrine of lis pendens would apply because during the pendency of the restitution proceeding the order was made and it is the policy of law that none of the parties can during the pendency of the proceeding affect the rights of the other by any act of himself. Nor would the rights of the parties be defeated if during the pendency of the proceedings, orders are made which would make the pending proceeding infructuous. Mr. Sengupta refers to three decisions viz. , (10) 12 CWN 642, (11) 66 CWN 796 and (12) 69 CWN 117. The decision in (11) 66 CWN 796 (V. R. Varma v. Mohan Kumar) is a decision of a Special Bench of this Court. That was a suit for ejectment and during the proceeding for ejectment, the sub-tenant became a direct tenant by virtue of an order under Section 16 (3) of the West Bengal Premises Tenancy Act. One of the questions was whether this order for direct tenancy would affect the decree for ejectment, Bachawat, J. then in this Court, held at page 799 as follows :-"if the landlord succeeds in obtaining a decree for recovery of possession of the premises, the decree will determine the direct tenancy created by the order under Section 16 (3 ). " sinha, J. as his Lordship then was observed as follows :-"this suit is not rendered incompetent because pending the suit, the sub-tenant has been upgraded to the position of a tenant. " p. N. Mookherjee, J. considered Section 52 and the principle of lis pendens. P. N. Mookherjee, J. observed as follows at page 809. " sinha, J. as his Lordship then was observed as follows :-"this suit is not rendered incompetent because pending the suit, the sub-tenant has been upgraded to the position of a tenant. " p. N. Mookherjee, J. considered Section 52 and the principle of lis pendens. P. N. Mookherjee, J. observed as follows at page 809. "in the aforesaid circumstances, it would be doing no violence to any legal concept and no injustice to this upgrading sub-tenant to deny him the right of defeating the pending suit on the ground of notice by reason merely of his upgraded status as aforesaid during its pendency and apply the doctrine of lis pendens on principles underlying its liberal application, to avoid multiplicity of proceedings and prevent litigation from becoming interminable. Liberal application of the doctrine has the sanction of high authorities and, even if the present instance be viewed as an extension of the same, such extension would be amply justified. "with great respect I agree with every word of it. Hence it has been decided by a Special Bench of this Court that if during the pendency of the suit for ejectment the sub-tenant is upgraded as direct tenant that would not affect the landlord's right in suit for ejectment. Similarly, if during the pendency of the proceeding for restitution the sub-tenant has been upgraded as a direct tenant the doctrine of lis pendens would apply and it would not affect Subhas's right for restitution. Mr. Sengupta has referred to an earlier decision of this Court in (10) 12 CWN 642, Gunga Prasad v. Brojo Nath, where it has held that the parties to the litigation must be placed in the same position as they were irrespective of any other right accruing to any of the parties during litigation. Finally, I have been referred to a decision of this Court reported in (12) 69 CWN 117 (Hiralal Ghosh v. Jatindra Nath Chakraborty ). In that case a Single Bench of this Court considered the question of restitution and followed the decisions already referred to in (4) 20 CWN 665 and also the decision referred to in (3) 24 CWN 50. But the decision in (1) 35 CWN 483 was not placed before Bijayesh Mukherji, J. I, however, overrule the objection of Mr. In that case a Single Bench of this Court considered the question of restitution and followed the decisions already referred to in (4) 20 CWN 665 and also the decision referred to in (3) 24 CWN 50. But the decision in (1) 35 CWN 483 was not placed before Bijayesh Mukherji, J. I, however, overrule the objection of Mr. Mukherjee that Khushi acquired a distinct right and ceased to be a representative of the decree-holder after he was upgraded as a direct tenant. He would have acquired an independent right had the order been made before the proceeding under Section 144 started. But he would not be entitled to be protected by the order under Section 16 (3) because that order itself is affected by the doctrine of lis pendens. Hence all the objections of Mr. Mukherjee are overruled and I hold that Subhas is entitled to restitution. ( 17 ) ONE other point struck me and that is this - the landlord, Anadi whose direct tenant Khushi became by the operation of the order under Section 16 (3) of the Premises Tenancy Act, is not a party to this proceeding and so would not be affected by the decision now made under Section 144. He could not have been a party to the present proceeding under Section 144 and his rights could not be decided in the present proceeding and his rights can only be determined in a suit. Therefore, should any order under Section 144 be made with the risk that Anadi may avoid it and the entire proceeding under Section 144 may become infructuous at the instance of Anadi, the superior learned, who is not a party to the present proceeding and who cannot be a party to the proceeding. The present proceeding was started by Subhas and a suit by Anadi would not be barred under Section 144 (2) of the Code. The other factor which would be taken into consideration is that on the 22nd April, 1957 when the order for direct tenancy was made the proceeding under Section 144 was pending and before that date ex-parte decree dated 25th September, 1964 was set aside and therefore it was well known to Sakhi possibly to Khushi the fact that the decree had been set aside and that an application under Section 144 was pending. But it does not appear to me that Khushi who carried on the proceeding under Section 16 (3) of the Premises Tenancy Act, took any step to and Subhas a party to that proceeding nor did Sakhi do anything. If that is the treatment which Khushi granted to Subhas there is nothing wrong if Subhas treats him equally well. But even it Subhas intended he could not have made Anadi a party to this proceeding because he was not a party to the suit nor does he claim under any party. Therefore, it is difficult to say that there are equities in favour of Khushi which would justify an order rejecting the petition under Section 144 and relegating the parties to a quit to which Anadi may be a party. Further if the petition under Section 144 is rejected, no relief by way of restitution can be obtained in that suit by Subhas because of Section 144, sub-section 2 of the Code. Finally, Anadi may not choose to assert his rights under the order under Section 16 (3) of the Act. He may accept the position in which he created his tenancy. I am not, therefore, inclined to relegate the parties to a suit and dismiss the petition under Section 144. I may refer to the decision of Mukherji, J. in the aforesaid case reported in (1) 35 CWN 483 at page 489. Mukehrji, J. observed as follows :-"furthermore, in proceedings relating to restitution it is only a summary enquiry that is contemplated and such an enquiry may be wholly unsuited for adjudicating upon complicated questions that may arise if the rights, which strangers may have acquired in the meantime, are to investigated into; though of course there would be no justification on the part of the Court to refuse to investigate all questions, simple or complicated, once the case comes directly within the provisions of Section 144, Civil Procedure Code. "i am not very much sure whether proceeding under Section 144 is a summary proceeding; an order under Section 144 is a decree within the meaning of Section 2 (2) of the Code of Civil Procedure and this decree is as appealable as any other decree. The only difference may be in the amount of Court fees paid and on the classification of the appeal as a miscellaneous appeal. The only difference may be in the amount of Court fees paid and on the classification of the appeal as a miscellaneous appeal. Further, Section 144, sub-section (2) provides as follows :-"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. " the observation in the last part of the sentence, quoted above, is clearly supported by the section itself. Mukherji, J. stated as follows :-"there would be no justification on the part of the Court to refuse to investigate a question, simple or complicated, once it comes directly within the provisions of Section 144. " therefore, as between persons who are proper parties to the petition under Section 144 I feel I am bound to decide the rights of the parties; no mater whether any other person who is not or cannot be a party to the present proceeding may make the order infructuous by obtaining an injunction from another Court. Further, I am satisfied that this is a case for order for restitution under Section 144. The result is the appeal is dismissed, the order of the Court of appeal below is affirmed and the petition for restitution is allowed. In the circumstances, of the case, each party will bear his costs throughout. No further order need be passed on the application. Appeal dismissed, restitution petition allowed.