1. In this case the plaintiffs, the present appellants, sued to recover what they have called their one-half share in the land described in the plaint, together with mesne profits, alleging that it was sold in execution of plaintiffs' Decree No. 665 of 1874 by Darkhast No. 1054 of 1875, and was bought by defendant 3's father both for the plaintiffs and defendants jointly, and that it was subsequently enjoyed jointly by them. The defendants are in actual possession of the land in suit. The defendants denied that the land was bought jointly, or, that the plaintiffs had ever received any of the profits of the land.
2. The first Court decided that the agreement to purchase the plaint land in common was illegal, and that on that ground the suit was not maintainable, and further that the suit was barred by Section 317, Civil Procedure Code, and on these findings dismissed the plaintiffs' suit with costs.
3. On appeal, the Assistant Judge, Thana, decided that the suit was not barred by Section 317, Civil Procedure Code, but that the suit was not maintainable as the agreement was illegal, because it was clear that the object of the agreement was to avoid the provisions of Section 294, Civil Procedure Code, and on these grounds confirmed the decree of the first Court.
4. The ground upon which the decree was confirmed in the lower appellate Court cannot be sustained, because Section 294, Civil Procedure Code, as it appears in the present Code, was enacted after the date of the Court purchase in question, and further the provisions of the Civil Procedure Code do not make the purchase by the decree-holder without the consent of the Court a void transaction.
5. Mr. P.P. Khare for the respondents has here sought to uphold the decree, on the ground that Section 317, Civil Procedure Code, is applicable to this suit, because the suit, as brought, is not itself a suit against the certified purchaser, on the ground that the purchase was made on behalf of any other person or on behalf of some one else through whom such person claims.
6. The case upon which Mr. Khare relied, is the case of Rama-krishnappa v. Adinarayana ILR (1885) Mad. 511 where it was held that,-'Section 317 only enabled the certified purchaser and those claiming under him to avoid arrangements made with him in the nature of a trust, and was no bar to the suit,'-showing that the Madras High Court held that a 'certified purchaser' covers a person standing in his shoes; thus certified purchaser does not mean only the person so named and entered in the Court sale as Court purchaser.
7. Mr. Ajinkya has relied upon two decisions, in Sibta Kunwar v. Bhagoli ILR (1899) All. 196 and Dukhada Sundari Dasiv. Srimonto Joardar ILR (1889) Cal. 950 where it appears that both the Allahabad and Calcutta High Courts have held that certified purchaser referred to in Section 317, Civil Procedure Code, does not include a person claiming through or under a certified purchaser. The decisions of the Calcutta and Allahabad High Courts when examined rest upon the observations of the Privy Council in Mussumat Buhuns Kowar v. Lalla Buhooree Lall (1872) 14 M.I.A. 496 that Section 260 (of the Civil Procedure Code, Act VIII of 1859). which corresponds to Section 317 of the present Code, should be construed strictly and literally and the ratio decidendi adopted in these cases in deciding the point whether a Court purchaser covers a person standing in the shoes of the Court purchaser, is the certified purchaser, was a literal interpretation of Section 317, Civil Procedure Code, and of that section only. It is important to observe, that their Lordships of the Privy Council in deciding the case of Mussumat Buhuns Kowur v. Lalla Buhooree Lall (4) stated that 'the object, which the framers of the Code probably had in view, was to prevent judgment-debtors becoming secret purchasers at the judicial sales of their property and to empower the Court selling under a decree to give effect to its own sale, without contention on the ground of Benami purchase, by placing the ostensible purchaser in possession of what it had sold, and of insuring respect to that possession by enacting that any suit brought against him on the ground of Benami shall be dismissed'
8. It does not appear necessary to hold that their Lordships were laying down that that was the sole object of the framers of the Act in enacting Section 260 of the Code of 1859. In the more recent Code the Legislature have clearly shown an intention to prevent decree-holders from becoming secret purchasers at a judicial sale; so that although Section 260 of the previous Code is to be found in an expanded form in Section 317 of the present Code, we find Section 294 added to the present Code which did not exist in the Code of 1859; viz., that no holder of a decree in execution of which property is sold, shall, without the express permission of the Court, bid for or purchase the property, and para 3 of that section runs as follows :-
When a decree-holder purchases, by himself or through another person, without such permission, the Court may, if it thinks fit on the application of the judgment-debtor or any other person interested in the sale, by order set aside the sale & c.
9. The period of limitation applicable to such application for setting aside the order of sale on the above ground is 30 days.
10. So that the remedy here provided for checking any contravention of the first para of this section would clearly meet only cases where the purchase is open, and unconcealed from the judgment-debtor or other person interested in the sale. When again we refer to the other sections of the Code, such as 310 A, 311, 312, 313, 315, there seems to be no doubt that the purchaser mentioned in these sections would cover also any person standing in the shoes of the actual Court purchaser. It is difficult to find any reason why in interpreting Section 317, we should confine attention to the words of that section alone, instead of reading that section together with Section 294 of the Code. So reading it and bearing in mind the remarks of the Privy Council already quoted in Mussumat Buhuns Kowur v. Lalla Buhooree Lall (1872) 14 M.I.A. 496 it appears to me that, on a proper construction of Section 317 read with Section 294, the words 'certified purchaser' in Section 317 do include the person standing in the shoes of the Court purchaser.
11. It was, however, contended by Mr. Ajinkya that the case should be remanded to the lower Court for decision : Whether the plaintiff has proved title to a one half share in the plaint and other than under the Court purchase 1
12. We have examined the plaint in suit and pleadings, and it does not appear from them, that any such case was sought to be made out by the plaintiffs in bringing this suit. It is, therefore, unnecessary to remand the case.
13. The decree of the lower appellate Court must accordingly be confirmed with costs.
14. The law as stated in Section 294, Civil Procedure Code, cannot apply to this sale, which took place in 1875, when there were no corresponding provisions in the law.
15. We are asked to take the words 'certified purchaser' in Section 317 to mean the person who bought at the sale and obtained the certificate, and no one else whatever; and to assume that the expression excludes any representative or person on whom the rights and obligations of the purchaser have devolved. We are not asked to read the section in this way by any natural or ordinary process of interpretation; for, if we interpret 'certified purchaser' in this way in Section 317, we must similarly interpret these words in Sections 310 A, 312, 313, and 315; in which case very curious and anomalous results would follow; as for instance, in case the actual purchaser died immediately after his purchase. The very restricted interpretation we are asked to give is based on two decisions of other High Courts, one of the Allahabad and the other of the Calcutta High Court, which proceed on the ground that Section 317 is to be interpreted strictly and literally. This conclusion is arrived at by a consideration of the Privy Council judgment in the case of Mussumat Buhuns Kowur v. Lalla Buhooree Lall (1872)14 M.I.A. 486. In that case the question was, whether seeing that a claim could not be maintained against the certified purchaser, as defendant, it could be urged as a defence in a suit in which the certified purchaser himself was the plaintiff. The question mainly discussed was, whether a benami purchase is in itself illegal. The conclusion arrived at was, that it is not; that Section 317 (or rather Section 260 of the then existing Code) did not make it illegal; and that the section was not to be interpreted to mean more than it said. Adopting the view that the section is not to be read as meaning more than it says; it is still, for the reasons stated, an unreasonable interpretation to hold that the words 'certified purchaser' necessarily exclude the representative of the purchaser.
16. I concur in the order proposed by my learned colleague.