JUDGMENT : S.K. Jha, J. 1. This miscellaneous second appeal arises out of a proceeding instituted under Secti9n 144 of the Code of Civil Procedure (hereinafter referred to as 'the Code') in Miscellaneous Case No. 68 of 1968 of the court of Munsif, Aurangabad, allowing the claim of the applicants-respondents for restitution and mesne profits from the 20th September, 1961 till the date of delivery of possession. At the outset it is worth stating that the subject matter of this appeal or the restitution proceeding in the trial court is lands appertaining to two khatas only, namely, khata nos. 47 and 48. The short facts relevant for the purpose of disposal of this appeal may be summed up as follows. A title suit bearing No. 208 of 1951 was instituted by the respondents of this appeal who were the mortgagors and the suit was in effect a suit for redemption of mortgage. The subject matter of the mortgage were five khatas out of which the two above-mentioned khatas which are the subject matter of this appeal were being claimed by the present appellants by virtue of a purchase at the court auction sale sometime before the institution of the present title suit. The aforesaid redemption suit, though registered as a title suit, was decreed by the trial court which ORDER :ed that a total sum of Rs. 2,358/- be deposited by the mortgagors-plaintiffs in the court which was, of course, deposited though not within the period prescribed under the trial court ORDER :, namely, one month from the date of the decree. The defendants-mortgagees appealed to the lower appellate court where the JUDGMENT : and decree of the trial court was affirmed by the first appellate court. The defendants-mortgagees preferred a second appeal to this Court bearing S.A. No. 836 of 1956. It may be mentioned here that when the appeal was pending in this Court the plaintiffs-mortgagors executed the decree and took possession of the properties which had been given in Rehan. The above mentioned Second Appeal No. 836 of 1956 was disposed of by JUDGMENT : and decree dated the 3rd of May, 1961 by which this Court held that out of the different khatas in question, over khata nos. 47 and 48 the mortgagors-plaintiffs' right had been extinguished by the auction sale at which the appellants had purchased the two khatas in question. 47 and 48 the mortgagors-plaintiffs' right had been extinguished by the auction sale at which the appellants had purchased the two khatas in question. Against the aforesaid JUDGMENT : of this Court the plaintiffs-mortgagors preferred an appeal before the Supreme Court which was numbered as Civil Appeal No. 33 of 1965 arising out of S.C.A. 94 of 1961. While the appeal was still pending before the Supreme Court the defendants (the present appellants) levied Execution Case No. 33 of 1964 and recovered possession of the lands in question and they had further filed Miscellaneous Case No. 142 of 1961 under Section 144 of the Code for mesne profits. On the 8th September, 1967 the Supreme Court set the matter finally at rest by reversing the JUDGMENT : and decree of this Court regarding the two khatas in question and it was after the decision of the Supreme Court that the plaintiffs-mortgagors have now instituted Miscellaneous Case No. 68 of 1968, for restitution as well as for mesne profits. Both the courts below having rejected the objections raised by the appellants to the restitution being allowed, they have _ preferred this miscellaneous second appeal and have confined their attack on the proceedings for restitution to the following main, grounds :--- (i) That in law there can neither be said to be a preliminary nor a final decree on the basis of which the mortgagors-plaintiffs can base any claim or title. (ii) In ORDER :to entitle the respondents to file an application for restitution under Section 144 of the Code the JUDGMENT : of the Supreme Court must be followed by a former final decree without which the respondents can have no cause of action. (iii) That the application for restitution being in the nature of an execution application for which a set form is prescribed, no relief by way of restitution can be granted unless there is a technical compliance with the aforesaid' set from; and (iv) That restitution in parts is not permissible. 2. Mr. Jyoti Narain, learned counsel appearing for the appellants I has placed reliance upon the decision I of the Supreme Court in (1) Mahijibhai Mohanbhai Barot V. Patel Manibhai Gokalbhai and others (A.I.R. 1965 Supreme Court 1477) for the proposition that an application for restitution" under Section 144 of the Code is for execution of a decree. 2. Mr. Jyoti Narain, learned counsel appearing for the appellants I has placed reliance upon the decision I of the Supreme Court in (1) Mahijibhai Mohanbhai Barot V. Patel Manibhai Gokalbhai and others (A.I.R. 1965 Supreme Court 1477) for the proposition that an application for restitution" under Section 144 of the Code is for execution of a decree. He has further placed reliance on the decisions of different High Courts. In support of the proposition that the court has to decide whether the party is entitled to any benefit of the restitution under Section 144 of the Code, he relied on the decision in the case of (2) Prithwinath Singh and others V. Suraj Ahir and others (A.I. R. 1966 Patna 254). He also relied on the decisions' in the cases of (3) Smt. Swaranmoyee Dasi V. Debendranath Karan (A.I.R. 1964 Orissa 55), (4) Smt. Savitri Devi V. Laxmi Narain and others (A.I.R. 1966 Rajasthan 261), (5) Subramaniam Chettiar and another V. Muthiah Pillai (A.I.R. 1957 Madras 189) and (6) Om Prakash and another V. Dewan Chand and others (A.I.R. 1964 Punjab 413). I shall refer to these cases in due course. Mr. Janeshwar Singh, learned counsel for the respondents, has drawn my attention to the provisions of ORDER :34 Rule 7 of the Code for the purpose of contending that where there is a specific direction for payment of money in a mortgage suit and such a direction is duly complied with there is no necessity for the preparation of the final decree. In view of the reasons hereinafter given, it is not necessary for me to deal with this point. He has further endeavoured to raise the plea of res judicata as a bar to raising of the present pleas by defendants-appellants. 3. The grounds of objection raised by learned counsel for the appellants, highly technical as they are in nature, have no room for application to a proceeding of the present nature. As held by their Lordships of the Judicial Committee in the case of (7) Jai Berham and others V. Kedar Nath Marwari and others (49 Indian Appeals 351), it is the duty of the court under Section 144 of the Code to place the parties in the same position which they would have occupied but for such decree or such part thereof as has been varied or reversed. To the same effect is the decision of the Supreme Court in (1) A.I.R. 1965 Supreme Court 1477 (supra), the very case relied upon by learned counsel for the appellants wherein their Lordships of the Supreme Court have laid down. "When a party, who lost his property in execution of a decree, seeks to recover the same by reason of the appellate decree in his favour, he is not initiating any original proceeding, but he is only concerned with the working out of the appellate decree in his favour. The application flows from the appellate decree and is filed to implement or enforce the same. He is entitled to the relief of restitution, because the appellate decree enables him to obtain that relief, either expressly or by necessary implication. He is recovering the fruits of the appellate decree. ." Their Lordships in the same case have further laid down that on a procedural matter pertaining to execution when a section yields to two conflicting constructions, the court shall adopt a construction which maintains rather than disturbs the equilibrium in the field of execution. It is well settled that the granting of restitution is not discretionary. It arises automatically in the reversal or modification of the decree and necessarily carries with it the right to restitution I of all that has been done under the erroneous decree. 4. I do not at all agree with the contention of Mr. Jyoti Narain that since there is a set form prescribed for application for execution under Section 47 of the Code, in the absence of such set form no proceeding for restitution can be instituted or continued for, it is equally well settled as has been held by their Lordships of the Judicial Committee of the Privy Council in the case reported in (7) 49 Indian Appeals 351 (supra) to which a reference has already been made earlier in another connection : "Nor indeed does this duty or jurisdiction arise merely under Section 144. It is inherent in the general jurisdiction of the court to act rightly and fairly according to the circumstances towards all parties involved." Once, therefore, it is held that the court in exercise of its inherent power can grant restitution, it is futile to urge that in the absence of set form for the purpose of execution no proceeding for restitution under Section 144 of the Code can be initiated. 5. With regard to the other main point urged by Mr. Jyoti Narain, namely, that there being no final decree or for that matter even a preliminary decree, there could not be any cause of action for initiation of a restitution proceeding, suffice it to say that apart from the hollowness of the submission for the reasons mentioned above, the appellants shall be estopped from raising this plea as it is plainly barred by the principles of resjudicata. When the plaintiffs-mortgagors had sought to execute the decree during the pendency of the Second Appeal No. 836 of 1956 in this Court it was quite open to the present appellants to raise this question regarding the existence or nonexistence of any preliminary or final decree. Such objection not having been raised at that stage during the execution proceeding and on the contrary the appellants themselves having resorted to the proceeding for -restitution after their success- in the second appeal in this Court, the appellants shall not be permitted to raise such a plea both on the ground of the principles of res judicata and estoppel by conduct-res judicata since the point might and ought to have been raised during the execution proceedings in the• first instance; estoppel by conduct, because they themselves resorted to proceedings for restitution under Section 144 of the Code after the decision of the second appeal in this Court and during the pendency of the appeal in the Supreme Court. 6. I shall now 'shortly deal with the cases cited by learned counsel for the appellants. I have already dealt with the case reported in (1) A.I.R. 1965 Supreme Court 1477 at some length. So far as the decision in the case of (8) Binayak Swain V. Ramesh Chandra Panigrahi and another (A.I.R. 1966 Supreme Court 948) is concerned, it is against the contention of Mr. I have already dealt with the case reported in (1) A.I.R. 1965 Supreme Court 1477 at some length. So far as the decision in the case of (8) Binayak Swain V. Ramesh Chandra Panigrahi and another (A.I.R. 1966 Supreme Court 948) is concerned, it is against the contention of Mr. Narain, in so far as it merely lays down that even in the absence of any final decree or ORDER :, once an erroneous decree or ORDER :is set aside and the case is remanded to the court below; even so, the party who has got an ORDER :of remand in his favour is entitled to be put back in the same position as he would have been but for the erroneous decree or ORDER :against him. The case reported in (2) A.I.R. 1966 Patna 254 (supra) is of no help to the appellants since all that is laid down there is that the court has prima facie to decide whether a party is entitled to any benefit under Section 144 of the Code. The facts of that case, shortly stated, were that the plaintiff having succeeded in the court below failed ultimately in the Supreme Court on the ground that he was not in khas possession on the date of vesting of the estate under the Bihar Land Reforms Act and, therefore, he had no subsisting title. The defendants who had also been held to be trespassers sought relief by way of restitution after the decision of the Supreme Court and the point raised on behalf of the State of Bihar before the High Court in the case just referred to was that no ORDER :for restitution could be passed in favour of the defendants who had themselves been held to be trespassers. This Court held that they were bound to be restored to their original possession in the absence of any proceeding under Section 4(g) of the Bihar Land Reforms Act having been resorted to by the State of Bihar and the possession having been taken on that strength. This Court held that they were bound to be restored to their original possession in the absence of any proceeding under Section 4(g) of the Bihar Land Reforms Act having been resorted to by the State of Bihar and the possession having been taken on that strength. So far- as the cases reported in (3) A.I.R. 1964 Orissa 55 (supra) and (4) A.I.R. 1966 Rajasthan 261 (supra) are concerned, they are merely authority for the proposition that even a final decree cannot be passed ex parte because the principle of audi alteram partem applies equally to cases of preparation of final decree and specially so when preparation of the final decree was barred by limitation. The case reported in (5) A.I.R. 1957 Madras 189 (supra) is merely an authority for the proposition that proceedings for preparation of final decree are also subject to limitation, whereas the case reported in (6) A. I. R. 1964 Punjab 413 (supra) merely lays down that the preparation of the final decree even if the deposit of money by the mortgagor be made after the expiry of the period fixed by the court, is not bad. 7. It will thus be seen that there is no substance in any of the points raised by Mr. Narain on behalf of the appellants. This appeal is accordingly dismissed, but in the circumstances of this case there will be no ORDER :as to costs. Appeal dismissed