JUDGMENT

Richards, J. - The facts out of which this appeal arises are somewhat peculiar. Tapasi Dube and Janki Dube obtained a joint decree for sale of certain mortgaged property. It appears that one of the decree-holders, Tapasi Dube, obtained leave to bid at the sale and he became the auction purchaser at the price of Rs. 950, which was the exact amount of the decree, that is, debt, interest and costs. He had taken the most active, if not the entire, part in the litigation which resulted in the decree in favour of himself and his co-decree-holder. He was allowed by the Court to take credit as against the purchase money for the amount of the decree, and consequently no money whatever was paid. When he applied for execution prior to his obtaining leave to bid, the application was made on behalf of himself and Janki Dube his co-decree-holder. Although there is no clear finding, it would appear that no part of the decretal money was ever paid by Tapasi Dube to Janki Dube. According to the allegations in the plaint, after the purchase Janki Dube and his successors in title remained in joint possession of the purchased property. But there is no specific finding on this point. The plaintiff further alleged that at the time of the purchase by Tapasi Dube he and Janki Dube were members of a joint Hindu family. This was not perhaps alleged by the plaintiff in his plaint as clearly as it might have been, but the defendants in their written statement raised the issue, and the Court of first instance framed an issue, but did not decide the question. I think the Court executing the decree ought not to have granted leave to Tapasi Dube to bid in his own name without obtaining the consent of Janki Dube, or at least ought to have called upon the latter to show cause why Tapasi Dube should not have leave to bid in his own name. Furthermore, Tapasi Dube having purchased in his own name, the Court executing the decree ought to have made Tapasi Dube bring the purchase money into Court, where it should have remained until an adjustment was made between the decree-holders. I merely mention these matters, because, if they had been considered in time, the present litigation would probably never have arisen. The immediate cause of the present suit was proceedings by the defendants in the Revenue Court, in which they claimed partition against the plaintiff of certain property alleging that in this partition the property purchased for Rs. 950 should not be considered as joint property. The plaintiff objected and claimed that the purchased property was joint like the rest and must be considered in making the partition. The Revenue Court stayed the partition and the plaintiff had to bring the present suit. The main defence, and only the point argued here, is that Section 317 of the CPC bars the plaintiff's claim. The Court of first instance held that Section 317 did not apply to the circumstances of the present case. The lower appellate Court relying upon the decision in Durga v. Bhagwan Das 1900 WN 190 reversed the finding of the first Court and dismissed the plaintiff's suit as being a suit which could not be maintained having regard to the provisions of Section 317. A number of cases have been cited, including the decision of the Privy Council on the corresponding section of Act VIII of 1859 in Bodh Singh Doodhooria v. Ganesh Chunder Sen (1873) 12 B.L.R. 817. As the facts of all the cases cited are different from those of the present case, I consider that I am at liberty to deal with the provisions of the section apart from authority. It seems to be the unanimous view of all the Courts that Section 317 and the corresponding section of the previous Act were enacted against what are known as benami purchases, that is, purchases made secretly by one person for another, the ostensible purchaser having no interest in the purchase and the real purchaser wishing for some reason that his name should not appear. I think that section was enacted to meet only thi