JUDGMENT H.N. Agarwal, M. - This is a revision against the order date November 5, 1965 passed by Sri Sidh Nath Singh, Additional Collector Sultanpur in case No. 12 of 1964-65 under Section 144, C.P.C. dismissing the appeal of the appellant under Section 271 U.P. Tenancy Act and approving the order dated October 23, 1964 passed by the Tahsildar, Sultanpur dismissing the application under Section 144, C.P.C. filed by the applicant. 2. I have heard the learned counsels for the parties and have gone through the record. The facts of the case may be stated here. Opposite party No. 1, Raja Jagdish Prasad Sahai had filed a suit under Section 163 of U.P. Tenancy Act against the revisionist Mohd. Nasir Khan and others which was decreed ex parte on June 26, 1955. On the basis of this ex parte decree he obtained possession on June 27, 1956. Mohd. Nasir Khan moved an application for setting aside the ex parte decree. This was rejected on March 1, 1958. However, in appeal the Collector Sultanpur ordered on June 22, 1959 that the ex parte decree may be set aside. On June 30, 1959 Mohd. Nasir Khan gave an application for the restoration of the property under Section 144, C.P.C. This application has been rejected by the Tahsildar, Sultanpur on October 30, 1964. The appeal against this order has been dismissed by the Addl. Collector Sultanpur by his order dated November 5, 1965, Mohd. Nasir Khan has now come up in revision against his order. The Additional Commissioner, Faizabad Division, who heard the revision in the first instance has recommended that the revision may be rejected. 3. The main grounds in this revision are that the learned lower court erred in law and equity by refusing the restitution of the property to the revisionist and that the court should have allowed restitution application acting as executing court leaving the parties to seek remedy in the proper court. 4. 3. The main grounds in this revision are that the learned lower court erred in law and equity by refusing the restitution of the property to the revisionist and that the court should have allowed restitution application acting as executing court leaving the parties to seek remedy in the proper court. 4. Section 144 C.P.C. reads as follows :- Application for restitution :- (1) "Where and in so far as a 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 (for order) or such part thereof as has been varied or reversed ; and, for this purpose the Court may make any orders, including payment of interest, damages, compensation and means profit, which are properly consequential on such variation or reversal. (2) 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 significant words in this section are 'so far as may be' and 'the position which they would have occupied but for such decree or order'. The words 'so far as may be 'indicate that the right of restitution is not absolute and the restitution has to take into account various other factors not specified in this section. The words 'the position which they would have occupied but for such decree or order 'indicate that the order or restitution is meant to place the parties to the decree or order in the position obtaining in the absence of that decree or order. No reference is, however, made in this section to third parties whose interest are also affected but who were not parties to the earlier decree or order. When third parties intervene, it is a matter for close scrutiny as to how such parties are to be placed in an order of restitution. In this connection the Addl. Collector has referred to Munni Lal v. Ganga Prasad, 1951 A.W.R. 20 wherein it has been that there is a distinction between a case in which the decree holder is an auction purchaser and the case of a stranger auction purchaser. In this connection the Addl. Collector has referred to Munni Lal v. Ganga Prasad, 1951 A.W.R. 20 wherein it has been that there is a distinction between a case in which the decree holder is an auction purchaser and the case of a stranger auction purchaser. A decree-holder auction purchaser is not protected when the decree is set aside or modified but if he is a stranger auction purchaser he is entitle to be protect in proceedings under Section 144 of C.P.Code. 5. The learned counsel for the revisionist has referred to Durab Singh v. Chet Singh and others, 1966 R.D. 78 where in it has been held that a person in whose favour invalid lease was executed is no better than trespasser. His contention is that the opposite parties No. 2 to 32 in this case who claim rights in the land in suit as transferees etc. are merely trespasser and have no legal rights. The latest decision on the question of restitution is reported in Gangadhar and other v. Raghubar Dayal, 1975 R.D. 91. In this case their lordships have observed as follows :- "The legal position no doubt is that a right to claim restitution arises, as urged by learned counsel for the appellants, even on an ex parte decree being set aside, see Allahabad Theatres v. Ram Sajiwan and Binayak Swain v. Ramesh Chandra. But this legal position, in our opinion, is not of a universal application. Its applicability will have to be judged in the circumstances of each case. What is restitution? Broadly speaking, it is the right of a party to being placed in the same position which he occupied before the decree or order which has subsequently been varied or reverse was executed. Suppose a landlord files a suit for ejectment against his tenant. The suit is decreed ex parte and in execution of this ex parte decree the tenant is ejected ad the landlord is put in possession. Subsequently the ex parte decree is set aside. The tenant can certainly without waiting for the final decision in the suit apply for being put in possession, i.e. being placed in the same position which he occupied before he was ejected in execution of the ex parte decree which has subsequently been set aside. Subsequently the ex parte decree is set aside. The tenant can certainly without waiting for the final decision in the suit apply for being put in possession, i.e. being placed in the same position which he occupied before he was ejected in execution of the ex parte decree which has subsequently been set aside. It is so because the very setting aside of the ex parte decree entitles the tenant to be put back in possession. Similar was the situation possession. Similar was the situation in the cases referred to above, even though in different circumstances. Will the same situation, however, obtain if as in the instant case the mere setting aside of the ex parte decree does not entitle the defendant to the suit to claim possession. In view of the order dated October 29, 1951, passed under Section 146 Cr.P.C. only such person was entitled to be put in possession in whose favour a declaration of title was made." X X X X "There is a divergence of judicial opinion on this point but, in our opinion it is not necessary to resolve that conflict in the instant case in view of the fact that it is settled law that Section 144 C.P.C. is not exhaustive and the Court has inherent jurisdiction to grant restitution. In Fai Berham v. Kedar Nath the privy Council was dealing with an execution sale of immovable property which took place in 1904. The sale and the certificate of sale were set aside by the Privy Council in 1913 reversing the decree of the High Court at Calcutta. The auction purchasers had been in possession since February 1905, and the price paid by them into court had been distributed to the holders of the decree against the judgment debtor. The purchasers had paid off the two bonds secured on the property and mentioned as encumbrances in the certificate proceedings on restitution were thereafter started. It was held. "It is the duty of the Court under Section 144 of the Civil Procedure Code of place the parties in the position which they would have occupied, but for such decree of such part thereof as has varied or reversed. Nor indeed does this duty or jurisdiction arise, merely under the said section. It is inherent in the general jurisdiction of the Court to act rightly and fairly according to the circumstances towards all parties involved. Nor indeed does this duty or jurisdiction arise, merely under the said section. It is inherent in the general jurisdiction of the Court to act rightly and fairly according to the circumstances towards all parties involved. As was said by Chairns L.C. in Roger v. The Comptorir a Escompte de paris. One of the first and highest duties of all courts is to take care that the act of the court does not injury to any of the suitors and when the expression the act of the Court is used, it does not mean merely the act of the primary Court, or any intermediate court of law, but the act of the court as a whole from the lowest Court which entertains jurisdiction over the matter up to the highest Court which finally disposes of the case. The auction-purchasers have partied with their purchase-money which they paid into court on the faith of the order of confirmation and certificate of sale already referred to. This money has been distributed amongst creditors of the judgment-debtor who had attached the unencumbered property in question and could have realised their judgment debts by sale of this property in execution and it would be inequitable and contrary to justice that the judgment-debtor should be restored to this property without making good to the auction purchasers the moneys which have been applied for his benefit. It was argued that the remedy of the auction-purchasers was either to apply for a certificate of sale of the unencumbered property or to obtain from the judgment-debtors repayment of the sums paid out to them under the order of the court. Their Lordships cannot agree with either of these suggestions, and for reasons stated by the Judges of the High Court. Their Lordships cannot agree with either of these suggestions, and for reasons stated by the Judges of the High Court. It would thus be seen that an auction purchaser who was not a party to the suit or decree was held entitled to apply for restitution and it was pointed out that even if Section 144, C.P.C. was not applicable, relief could be granted to him under Section 151, C.P.C. That the provisions of Section 144 C.P.C. were not exhaustive and that the court has inherent power to restore any party which has suffered any injury by virtue of any order passed by the Court to the position which it would have occupied if the wrong order had not originally been passed by the Court was the view taken by the Privy Council in an earlier judgment in Prag Narain v. Kamlakhia Singh and was followed by the Lahore High Court in Sohun v. Mast Ram. The same view taken by the Madras High Court in S. Chokaligan v. N.S. Krishna the Calcutta High Court in Fatindra Nath v. Jugal Chandra and the Jammu and Kashmir High Court in Subhash v. Bodh Raj. On the authority of these cases and on the principle contained in the maxim act us curiae neminem gravabit it is really that duty of the court to grant restitution under its inherent powers when a person has been deprived of his property due to an order of Court which has subsequently been varied or reverse as being erroneous. In our opinion, on the facts of the instant case even if respondents 7 to 10 could not invoke the powers of the court to grant restitution under Section 144, C.P.C. they could certainly do so under Section 151, C.P.C." In the present case Opposite Party No. 1 Raja Jagdish Prasad Sahi, who had obtained an ex parte decree of ejectment against the revisionist had stated that the land in suit is let out to Shikmi tenants on account of which the actual possession was not affected and no loss was being caused to the revisionist. The case of Mata Prasad, Opposite Party No. 18, is that he is in possession of 3 biswas area of the land in suit for the last 60 years and the revisionist had no rights. The plea of Mst. The case of Mata Prasad, Opposite Party No. 18, is that he is in possession of 3 biswas area of the land in suit for the last 60 years and the revisionist had no rights. The plea of Mst. Mahrani, Sri Lal Bahadur, Sri Abdulla, Swami Saran Nigam, Vakil, Devi Prasad Pandey, Vakil and Mohd. Basir Khan, opposite parties Nos. 6, 8, 16, 19, 20, 22, 23 and 26 is that they are bona fide purchasers of the land in suit and no right of restitution accrues against them. The case of Mahabir Opposite Party No. 4, is that he was a Shikmi tenant of plots Nos. 675, 769-M and 720-M on behalf of Nasir Khan and he had no objection to the restitution in favour of the revisionist. Ram Narain, Surajdin and Mahabir, opposite parties Nos. 3, 4 and 5 also claimed to be Shikmi tenant of plot No. 612 on behalf of the revisionist and have objection to the restitution. The case of Viryabhushan, Opposite Party No. 32, is that he obtained plot No. 719-M and 720-M by registered sale deed executed on August 8, 1956 and registered on August 13, 1956 and that no right of restitution remained in respect of this land. He also stated that in some part of the land Railways were in possession an building had been constructed. The case of Smt. Dhanraji Devi wife of Debi Prasad, opposite party No. 31 is that she was in possession of her part of the land in suit through a sale deed. 6. Thus the position which emerges is that some of the opposite parties have admitted the claim of the revisionist for restitution and themselves claimed to be only Shikmi tenants of certain plots. In so far as these plots are concerned there is no legal or practical difficulty in restitution. Opposite party No. 1 who got the ex parte decree in his favour also had not raised any objection to the restitution any objection to the restitution in these cases. Thus the restitution in so far as these plots are concerned should have been allowed. By virtue of such restitution the revisionist would step into as the tenant-in-chief and the opposite parties concerned would be the Shikmi tenants as admitted by them. The Shikmi tenants would however continue to retain actual cultivatory possession. Thus the restitution in so far as these plots are concerned should have been allowed. By virtue of such restitution the revisionist would step into as the tenant-in-chief and the opposite parties concerned would be the Shikmi tenants as admitted by them. The Shikmi tenants would however continue to retain actual cultivatory possession. The learned Additional Collector has erroneously rejected the restitution in respect of these plots. 7. As regard such of the opposite parties as claimed to be bona fide transferees, the nature of the alleged transfers in their favour and the circumstances in which these transfer took place have to be seen. The transfers deed in question are not on record. Without going into the original documents it is not possible to say whether these transfers are illegal and whether these transferees should merely be considered to be trespassers in accordance with the principle laid down in 1966 R.D. 78. 8. As regards Mata Prasad, opposite party No. 18, since he claimed to be in possession of a portion of the land in suit for more than last 60 years an order of restitution can be passed only after his claim has been fully inquired into and prima facie finding that the revisionist was in fact the tenant on this portion of land has been arrived at. 9. The result is that the revision is allowed and the impugned orders of the courts below rejecting the revisionist's claim for restitution in toto is set aside. The case is now remanded to the trial court for a fresh decision in the light of the observations made above.