RAMALINGA CHETTY Vs. PACHAIAPPA MUDALY

JUDGEMENT

(1.) In our judgment the present suit is not "a suit... against the certified purchaser on the ground that the purchase was made on behalf of any other person" within the meaning of Section 317 of the Civil P. C.. The certified purchaser is no doubt a defendant to the suit, but there is no contest between him and the plaintiff, the former has never disputed the plaintiff's title, and, in fact, at the trial of the suit he deposed that he purchased the property on behalf of the plaintiff and delivered possession thereof to the plaintiff. On this ground the case appears to be clearly distinguishable from Viraraghava V/s. Venkata I.L.R. R., 16 M. 290 upon which the District Judge relied. There is apparently no case in which it has been held, that from the mere fact that the certified purchaser is a defendant, there being no contest between the plaintiff and the certified purchaser, Section 317, C.P.C. is a bar to the suit against persons who, as the plaintiff alleges, are wrongfully in possession. In Monappa v. Surappah I.L.R., 11 M. 243 the contest was between the certified purchaser and the plaintiff-- the latter having been put into possession by the former, and it was held that as between the plaintiff and the certified purchaser the section was not a bar to the suit. In that case, the judges say, " It is obvious, therefore, that, when after obtaining the certificate of sale, the purchaser acknowledges that his purchase is benami and gives up possession, or does some act which unequivocally indicates an intention to waive his right, or to restore the property to the real owner, the fresh act might, by reason of the antecedent relation between the parties, operate as a valid transfer of property, the reason being that benami purchases are not made illegal, though the real purchaser is disabled from maintaining a suit against the certified purchaser at an auction sale in execution of a decree on the sole ground that he was only a benamidar." It seems to us that this reasoning applies a fortiori to a case like the present where there is no contest between the plaintiff and the certified purchaser and the defendants who contest the suit set up an independent title.

(2.) We can see nothing in the judgments of the Privy Council to which our attention has been called, which is inconsistent with our holding that the present suit is not one to which Section 317, P.C. applies.

(3.) The decree of the District Judge must be reversed and the appeal remanded for decision on the merits; The plaintiff will have the costs of the appeal.