1. This appeal is on behalf of the plaintiff. The facts of the case are these. The plaintiff in the suit had a small share in a certain mauza, which was sold in execution of a decree against him and was purchased by defendant No. 2 on the 3rd June 1893. On the 17th August 1904 the defendant No. 2 sold the share to defendant No. 1. The present suit was instituted by the plaintiff for confirmation of his possession with regard to that share on the allegation that the defendant No. 2, although a certified purchaser, was merely a benamidar for him, the plaintiff, and that the transaction of sale between the defendant No. 2 and defendant No. 1 was a fraudulent and colourable transaction.
2. The first Court without going into evidence dismissed the suit on the ground that Section 66 of the present Civil Procedure Code was a bar to the maintainability of the suit. The plaintiff appealed to the Subordinate Judge of Muzafferpore, who dismissed the appeal holding that Section 317 of the old Code, and not Section 66 of the present Code; applied to the incidents of the sale, the sale having taken place at a time when the old Procedure Code was in force, and that the suit was not maintainable even under Section 317 of the old Code. Hence the present appeal.
3. The grounds taken are, first, that though the suit was instituted at a time when the present Code was in force, the right to sue vested in the plaintiff before the passing of the new Code and could not be interfered with by the new Code; and secondly, that although there was a sale of the share in question in execution of a decree, the plaintiff notwithstanding the sale remained all along in possession.
4. The first question really is whether Section 317 of the old Code or Section 66 of the new governs the present suit.
5. Section 66 of the new Code is more comprehensive. It says that a suit against a person claiming under a certified purchaser is not maintainable on the ground of the purchase being on behalf of plaintiff.
6. Under Section 317 of the old Code, no suit could be maintained against a certified purchaser.
7. The present suit, however, is not against the certified purchaser but against a private transferee of the certified purchaser. That being so, Section 317 cannot be a bar to the maintainability of the suit.
8. On behalf of the appellant, our attention has been invited to certain authorities of this Court, first to the case of Dukhada Sundari Dasi v. Srimonto Joardar 26 C. 930; 3 C.W.N. 657 where it was distinctly held that Section 317 of the old Civil Procedure Code is no bar to a suit against any person claiming through or under the certified purchaser. The next case referred to was the case of Nisakar Das v. Bairagi-Samal 19 Ind. Cas. 909; 19 C.L.J. 330, in which it was held that the expression 'certified purchaser' in Section 317, Civil Procedure Code, should be strictly construed and did not include his successor-in-title. The third case referred to is the case of Sasti Churn Nundi v. Aunopurna 23 C. 699. In this reported case the plaintiff had purchased in the name of the defendant certain property at a sale in execution of a decree. The plaintiff continued in undisturbed possession for a number of years. He then brought a suit against the defendant as the latter wanted to disturb his possession. It was held that the suit was maintainable as it did not come within the scope of Section 317 of the Code. Here the plaintiff claims to have been in possession from 1893. On a review of the above cases, we think that this case should be sent back to the lower Appellate Court with instructions to send it to the first Court for deciding the case on the merits after giving both sides an opportunity of entering into evidence and examining witnesses. We set aside the judgment of the lower Appellate Court and remand the case for that purpose.
9. Costs will abide the result.
10. I agree in the order proposed.