JUDGMENT H. N. Kapoor, J. 1. THIS appeal is directed against the order of the Civil Judge, Aligarh dated 24-10-1972 passed in Civil Appeal No. 163 of 1972 allowing the appeal and reversing the order of the learned Munsif for restitution against the respondents under section 144 of the Code of Civil Procedure. 2. THE facts giving rise to this appeal are as follows :- Sampat Lal, respondent no. 2, obtained a decree for recovery of money against a firm M/s. Rameshwar Dass Ram Narain. Ram Narain, one of pertners of the firm, had died during the pendency of those proceedings and the decree was ultimately passed against the appellant who was the widow of Ram Narain and was substituted as his heir. She was shown as a judgment debtor but it was in respect of the assets of Ram Narain in her hand. In execution of the decree, Sampat Lal got the mortgagee rights in respect of the house in dispute attached and sold. Smt. Dayawati, present appellant, then filed an objection under Order 21 CPC against the sale. That objection was dismissed. In appeal, confirmation of the sale was stayed. Ultimately, the appeal was also dismissed. On 2-6-1970, Smt. Dayawati again filed an objection under section 47 CPC claiming that she was the usufructuary mortgagee of the property in dispute and Ram Narain had no interest in this property and the property was wrongly attached and sold in execution of the decree. She also stated that she had nothing to do with the firm M/s. Rameshwar Dass Ram Narain. That objection was over-ruled and on the same date, executing court confirmed the sale. Smt. Dayawati then filed an execution appeal (Civil Appeal No. 145 of 1970) which was allowed on 20-8-1971 by the Judge Small Cause Court. Her objection under section 47 CPC was allowed and the order of the executing court was set aside. In the meantime, respondent no. 2, who was the decree holder-auction-purchaser of mortgagee rights took possession of the property in dispute. The same was then redeemed by Champa Ram, respondent no. 1, from Sampat Lal and Champa Ram took possession of the property after redeeming it in August, 1970. 3. In the meantime, respondent no. 2, who was the decree holder-auction-purchaser of mortgagee rights took possession of the property in dispute. The same was then redeemed by Champa Ram, respondent no. 1, from Sampat Lal and Champa Ram took possession of the property after redeeming it in August, 1970. 3. AFTER obtaining the order of the appellate court in Civil Appeal No. 145 of 1970 in her favour, Smt. Dayawati filed an application under section 144 CPC claiming restitution against both the respondents Sampat Lal and Champa Ram. That application was allowed by the learned Munsif by his order dated 13-5-1972. It was ordered that Smt. Dayawati is entitled to the restitution of her mortgagee rights and to recover rent at the rate of Rs. 150/-per month from the opposite party with interest at the rate of Re. 1/-% per month. It is stated that she obtained formal possession of the property on 27-5-1972 on the basis of this order. The property was, however, occupied by tenants. Civil Appeal No. 163 of 1972 was filed by Champa Ram against the order of the Munsif dated 13-5-72 and the same was decided in favour of Champa Ram by the Civil Judge, Aligarh on 24-10-1972. The learned Civil Judge reversed the order of the learned Munsif dated 13-5-1972 and dismissed the application under section 144 CPC. It is against that order that the present appeal has been preferred by Smt. Dayawati. 4. SRI G. P. Bhargava, learned counsel for the appellant, states that under the stay orders passed by the lower appellate court and the High Court, rents are being deposited in the Court after 27-5-1972. The learned Civil Judge took the view that restitution could not be claimed against Champa Ram when he had obtained possession from the purchaser of mortgagee rights by paying of the mortgage debt. He also observed that it is settled law that restitution cannot be obtained under section 144 CPC against a bonafide purchaser for value at an auction sale. This is exactly the point which arises for decision in this appeal. He also observed that it is settled law that restitution cannot be obtained under section 144 CPC against a bonafide purchaser for value at an auction sale. This is exactly the point which arises for decision in this appeal. Sri G. P. Bhargava, learned counsel for the appellant, has argued that the learned Civil Judge has misinterpreted the decision of the Hon'ble Supreme Court in the case of Janki Rai v. Gurdial Singh, 1967 SC 608 and the decision of this court in the case of Mani Lal v. Ganga Prasad, 1951 AWR 20. In 1951 AWR 20 all that was held that restitution could not be claimed against a stranger who had purchased the property bona, fide in an auction sale even though he knew that the judgment debtor had filed an appeal against the decree. In this case, reference was made to the case of Zainul Abdin Khan v. Muhammad Asghar Ali Khan, 10 All. 166 and particular mention was made to the distinction drawn by their Lordships of the Privy Council between a case in which the decree holder was the auction purchaser, who was not protected when the decree was set aside or modified and the case of a stranger auction-purchaser. In 1967 Supreme Court 608 their Lordships of the Supreme Court also referred to the Privy Council case and made the following concluding observations :- "The policy of the Legislature seems to be that unless a stranger auction purchaser is protected against the vicissitudes of the fortunes of the suit, sale in execution would not attract customers and it would be to the detriment of the interest of the borrower and the creditor alike if sales were allowed to be impugned merely because the decree was ultimately set aside or modified." That was also a case of stranger auction purchaser and the sale was ordered to be confirmed under Order 21 Rule 92 CPC. The Supreme Court was not considering any restitution application under section 144 CPC. The Supreme Court was not considering any restitution application under section 144 CPC. Their Lordships made the following observations which will show that they kept the question open even with regard to stranger auction purchaser for restitution under section 144 CPC was concerned :-- "We are not here concerned with the question as to whether restitution can be asked for against a stranger auction purchaser at a sale in execution of a decree under Sec. 144 of the Code of Civil Procedure and express no opinion thereon." 5. IN any view of the matter all that can be said is that the sale in that case was ordered to be confirmed because it was a case of stranger auction purchaser and not a decree-holder auction-purchaser. Sri H. S. Joshi, learned counsel for respondent no. 1 laid great stress on the fact that the Supreme Court has cited a case of S. Chokalingam v. N. S. Krishna, AIR 1964 Madras 404 with approval in which it was held that even a transferee from the decree-holder auction purchaser was protected like that of a stranger. No doubt it was so held by the Madras High Court but I do not think that the Hon'ble Supreme Court has given any approval to such a view. It had cited the case of Madras High Court only for the purpose of drawing distinction between a case of a decree-holder auction purchaser and a stranger auction purchaser. 6. SRI G.P. Bhargava, learned counsel for the appellant has argued that, the view taken by the Madras High Court is not in consonance with the provisions of Section 52 of the Transfer of Property Act in which doctrine of Lis pendens has been applied. In the case of Sukhan Singh v. Uma Shanker, AIR 1935 Allahabad 65, Niamatullah, J. had considered the provisions of Section 52 of the Transfer of Property Act and had taken the view that the restitution under Section 144 CPC can be claimed not only against the opposite party, but also his representatives or persons deriving title from him. I find myself, with respect, in agreement with the view taken by the learned Judge and I am difinitely of the opinion that a contrary view was not taken by the Supreme Court in the above cited case. I find myself, with respect, in agreement with the view taken by the learned Judge and I am difinitely of the opinion that a contrary view was not taken by the Supreme Court in the above cited case. There is thus no doubt that the view taken by the tower appellate court is based on wrong interpretation of the aforesaid decisions of the Supreme Court and our Court. Learned counsel for respondent no. 1 has also argued that doctrine of Lis pendens will not apply in this case as it had not been proved whether the appeal (Civil Appeal No. 145 of 1970) had been filed by Smt. Dayawati before the property was redeemed by Champa Ram or afterwards. In my opinion, it will not make any difference as the Explanation to Section 52 of the Transfer of Property Act is clear on this point that "for the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceedings in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order............." It is well settled law that the appeal is in continuation of the suit. 7. LEARNED counsel for the respondent Champa Ram has also argued that restitution under section 144 CPC can be claimed only when the original decree has been set aside in appeal or revision and not when order in execution has been set aside in appeal or revision. I do not agree with this contention. Section 144 CPC uses the words "where and in so far as a decree or an order is varied or reversed........." The words 'or an order' were inserted by Act No. 66 of 1956. In Uttar Pradesh, they were added in 1954. Even apart from it, the definition of decree includes the determination of any question within Section 47 or Section 144 CPC. There is thus no reason why section 144 CPC will not be attracted when an order passed under section 47 CPC is set aside in appeal or revision. The Supreme Court has held in the case of Mahiji-bhai Mohanbhai Barot v. Patel Mani-bhai Gokalbhai, 1965 SC 1477 that application for restitution is an application for execution of the decree of the appellate court. 8. The Supreme Court has held in the case of Mahiji-bhai Mohanbhai Barot v. Patel Mani-bhai Gokalbhai, 1965 SC 1477 that application for restitution is an application for execution of the decree of the appellate court. 8. LEARNED counsel for the respondent no. 1 further argued that Smt. Dayawati filed the objection in the capacity of a stranger and not in the capacity of a judgment debtor and as such her objection did not lie under section 47 Code of Civil Procedure and the Judge Small Cause Court acted without jurisdiction in treating the objection as having been filed under section 47 CPC and in allowing that objection in Civil Appeal No. 145 of 1970. According to him that decree should be treated as nullity and the application under section 144 CPC should have been rejected on this ground alone. It has already been noticed above that Smt. Dayawati was substituted as an heir of her husband Ram Narain and was shown as a judgment debtor even in the original decree. She had, therefore, no alternative but to file objections as a judgment-debtor. Moreover, an Execution Second Appeal No. 1310 of 1972 had been filed by Sampat Lal in this Court against the order dated 20-8-1971 in Civil Appeal No. 145 of 1970 and that was dismissed on 27-11-1975 as Sri V. K. Burman, learned counsel for the appellant stated that the appeal was not pressed. Sri G. P. Bhargava, made a statement from the Bar to this effect and also filed a certified copy of that order. I am, therefore, not prepared to go into the question whether the order passed by the Judge Small Cause Court in Civil Appeal No. 145 of 1970 was correctly passed or not. Lastly, learned counsel for the respondent no. 1 argued that it was possible for the Court to give equitable relief under section 144 CPC by ordering Sampat Lal to pay the money to Smt. Dayawati which he had obtained from Champa Ram who redeemed the mortgage, instead of ordering the restitution of the property to the appellant. I do not think that it is possible to do so in proceedings under section 144 CPC which envisages that the parties should be restored as early as possible to the position as the parties were before the execution of the decree. I do not think that it is possible to do so in proceedings under section 144 CPC which envisages that the parties should be restored as early as possible to the position as the parties were before the execution of the decree. Moreover, when a suit for restitution is filed against the present appellant, it will be open to her to take such defence as permissible under law. Learned counsel for the respondent no. 1 has also argued that the appellant had alleged that Rs. 150/- per month as rent was recovered from the property while on behalf of Champa Ram it was stated that only Rs. 100/- was recovered as total rent from the property and the appellant did not care to adduce evidence to show that Rs. 150/- per month was the rent recovered. According to him the mesne profits allowed by the trial court were excessive. For this reason, it is possible to order that the mesne profits will be to the extent of Rs. 100/- only. She will also be entitled to realise other rent for the period prior to 27-5-1972 which had been realised by Champa Ram, respondent no. 1. 9. BEFORE I part with this case, I may refer to a preliminary objection raised by the learned counsel for the respondent no. 1. The learned counsel contended that Smt. Dayawati has already sold her interest and as such she could not pursue restitution application under section 144 CPC. The respondent no. 1 had made such an allegation in the counter affidavit which was filed in reply to the affidavit filed along with the stay application. No application was filed raising such an objection. However, in the case of Salik Shukla v. Brij Nandan Misra, 1962 AWR 859, Dhawan, J. had held that- "Order 22 R. 10 CPC provides in effect that in cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the court, be continued by or against the person to or upon whom such interest has come or devolved.........." 10. IT was further observed that it was open to an assignee or a transferee to apply for being impleaded as a party but he cannot be compelled to make himself a party to the suit and so the original plaintiff can continue the suit even after the transfer or assignment or devolution of interest. I respectfully agree with the view taken by the learned Judge in that case. Sri Joshi, learned counsel for Champa Ram, respondent no. 1, also argued that Civil Appeal No. 145 of 1970 was allowed with certain observations that the decree-holder could have executed the decree against the personal property of Smt. Dayawati also in case It was proved that no other property of Ram Narain was left in her hands because she had already sold away several properties belonging to Ram Narain. These observations have no bearing so far as the restitution application under Section 144 CPC is concerned. It is of course always open to Sam-pat Lal, decree-holder to apply for fresh execution, if it is legally permissible to him. 11. IN the result, the appeal is allowed. The judgment and decree dated 24-10-1972 of the Civil Judge, Aligarh are set aside and that of the learned Munsif dated 13-5-72 are restored with the modification that the appellant is entitled to the restitution (sick) of her mortgagee rights and to recover rent of Rs. 100/- admittedly realized from the respondent no. 1 with interest till the date of possession to the appellant along with interest at the rate of Re. 1/-% per month. The appellant shall also be entitled to withdraw the entire amount of rent which is in deposit in Court. She will also be entitled to realise other rent for the period prior to 27-5-1972 which had been realised by Champa Ram, respondent no. 1. The appellant shall be entitled to recover her costs throughout from Champaram, respondent no. 1 who alone contested this appeal. The stay orders are vacated. Appeal allowed.