JUDGMENT
Atkinson, J.
1. Lalji Thakur died childless possessed of an estate situate in Mouza Sembhuar. Upon his death he was succeeded by his mother, Musammat Phani Thakurain, who thereupon became entitled to a Hindu widow’s estate therein.
2. Daring her possession of the estate as a Hindu widow, she allowed the revenue rant due and payable to Government to fall into arrear. The estate to which Musammat Phani Thakurain succeeded was a revenue rent paying estate. The actual amount due for arrears of revenue was the sum of Rs. 6 odd; and the actual amount thereof in respect of which default was committed and for which the property was sold was Re. 1-4-0.
3. The property was soli by the Collector on the 5th June 1911 in pursuance of the powers vested in him under the Revenue Sales Act, Act XI of 1859, and was purchased by the judgment-debtor before us, viz., Bansi Singh, who paid for the property sold the sum of Rs. 1,300 odd.
4. The plaintiffs as reversionary heirs of Lalji Thakur instituted the original suit connected with these miscellaneous appeals, claiming a declaration that the sale effected by the Collector as aforesaid under the Revenue Sales Act was invalid and in-operative to bind the reversioners, on the ground that Musammat Thakurain, the mother of the last male owner, had conspired with others including the purchaser to fraudulently force the property to be sold in defeasance of the rights of the plaintiffs.
5. The case came on for hearing and was tried by the learned District Judge of Darbhanga; and the learned District Judge decreed the suit in favour of the plaintiffs, granting them the declaration which they sought by the prayer of their plaint.
6. From the decision of the learned District Judge an appeal was preferred to the High Court, and this Court by its order of the 17th August 1916 reversed the decree granted by the learned District Judge and held that the property then in suit was not fraudulently brought to sale by Musammat Phani Thakurain and others acting jointly with her.
7. Subsequently, however, the High Court was asked to review its previous order or decision, dated the 17th August 1916; and upon review two of our learned brothers of this Court were pleased to direct, by their order dated the 4th April 1918, that the appeal presented to the High Court should be dismissed, which in effect operated to restore the decree pronounced by the learned District Judge, granting the plaintiffs the relief claimed by them.
8. Pending the appeal, Musammat Phani Thakurain died.
9. By the order pronounced by this Court, dated the 17th August 1916, the plaintiffs were obliged to lodge in Court the costs awarded against them by that order. This the plaintiffs did and the amount for costs so lodged by the plaintiffs was withdrawn by Bansi Singh, who was the auction purchaser as aforesaid at the revenue sale.
10. It is necessary to observe that the sale effected by the Collector was never impeached on any ground specified by the Revenue Sales Act, so that the sale so effected by the Collector was binding and operative.
11. After the High Court’s order of the 4th April 1918 an application was made to the learned District Judge by the plaintiffs seeking to have restored to them the amount of costs which they deposited in Court by the direction of this Court’s order, dated the 1 7th August 1916, which money was withdrawn by Bansi Singh.
12. This application is covered by Miscellaneous Appeal No. 41 of 1919.
13. A second application was also made by the plaintiffs seeking to execute as against Bansi Singh, the auction-purchaser, the decree for the amount of costs to which the plaintiffs became entitled as a result of the litigation terminating in their favour.
14. The learned District Judge by his order, dated the 4th January 1919, rejected the contention put forward on behalf of the judgment debtor and acceded to the application presented on behalf of the plaintiffs and directed restitution of the monies which Bansi Singh had withdrawn from Court as and for costs; and the learned Judge also gave the plaintiffs permission to execute their decree for costs in respect of the costs incurred not only in the High Court but also in the Subordinate Courts as against Bansi Singh.
15. From the order of the learned Judge two miscellaneous appeals have bean preferred before us.
16. The contention is that by virtue of Section 34 of the Revenue Sales Act XI of 1859, the plaintiffs are not entitled to the relief which they now seek.
17. It is necessary to state that when Bansi Singh, the auction purchaser, deposited in the Collectorate the amount due by him as the purchase-money in respect of his purchase of the estate sold, Musammat Phani Thakurain withdrew the money so lodged in the Collectorate and applied the same for her own use; and, so far as can be gathered, no portion of such monies ever reached the hands or possession of the plaintiffs,
18. It is contended that, by reason of this payment into the Collectorate by Bansi Singh and the withdrawal of the monies so lodged by him by Musammat Phani Thakurain, the plaints are not entitled to seek or ask for restitution of the amount for costs paid into Court by them and withdrawn by Bansi Singh, unless and until the plaintiffs reimburse the purchaser the amount of the surplus purchase monies which the mother of the last male owner withdrew from the Collectorate. With that contention we cannot agree.
19. Section 34 of the Revenue Sales Act has, in our opinion, no application to the facts of this case at all. It applies merely to the case of an owner who has committed default in payment of the revenue rent of his property, and who subsequently by a suit succeeds in setting aside the sale held under the Revenue Sales Act, and which owner has applied for and withdrawn the surplus purchase money lodged in the Collectorate under such sale for his own benefit;.
20. Section 34 provider that, in such event, if the owner on default of the payment of Government revenue seeks to be restored to his own property on the sale being set aside, on any of the grounds specified in the Act itself, he must refund to the purchaser whatever monies belonging to the purchaser he has acquired for his own benefit, and the section prescribes a limit of six months within which time such refund must, be made.
21. Obviously Section 34 of Act XI of 1859 has no application to a suit instituted by third parties against an auction-purchaser at a revenue sale such, for example, as the reversioners in this case, in respect of a claim for relief not provided by the Act itself.
22. Accordingly Section 144, Civil Procedure Code, is the section which governs the rights of the parties in the present application, and clearly this is a case in which restitution ought to he made to the plaintiffs of the amount for costs which they deposited under the order of this Court and which Bansi Singh duly withdrew.
23. Therefore, with regard to the decision of the learned District Judge in Miscellaneous Appeal No. 44, we agree that his finding in law and fast was right.
24. With regard to Miscellaneous Appeal No. 42 we fail to see on what principle the plaintiffs should not be entitled to recover from the judgment-debtor, Bansi Singh, the costs to which they are properly entitled by reason of their success in the litigation which they instituted, and in which Bansi Singh was substantially defeated.
25. It is contended that the order of this Court made on the 4th April 1918 is silent as to any award in respect of costs incurred in the lower Court: but inasmuch as the order of this Court, dated the 4th April 1918, was an order of affirmance, and the appeal was dismissed with costs, it clearly, in our opinion, was intended that the costs in all Courts should follow as a matter of right on the successful event and be awarded to the plaintiffs.
26. Therefore, we see no reason in law or principle why the plaintiffs should not be entitled to read the full fruits of their victory.
27. Accordingly we dismiss both these appeals with costs, measured at five gold mohurs to cover both cases.
Mullick, J.
28. I agree.