1. We think that the order of remand made by the District Judge must be set aside.
2. The lower Appellate Court directed the Court of first instance to add Sarada Sundari Dasi, the real owner, to be made a party to the suit because the defendant No. 2, who contested the suit on the mortgage, was merely a benamdar.
3. Having regard to the recent decision of the Privy Council, it appears that a proceeding against a benamdar in its ultimate result is fully binding on the beneficial owner. That being so. we do not see that it is necessary to add Sarada Sundari as a party to the suit which, moreover, would be barred as against her.
4. Some arguments were advanced on behalf of the appellant that the defendant No. 2 is not a benamdar now. Bat the Court of first instance found that 'the defendant No. 2 lived in the same house as Sarada and served her. He took kabuliyats in his own name from the tenants in this property, as he himself admits. The tenants also used to pay rents in the house where he as well as Sarada Sundari lived.' Admittedly there is no release executed in favour of Sarada Sundari. In these circumstances, we think that the defendant No. 2 still continues to represent Sarada, the real owner.
5. The result is that the order of remand is set aside and the one sent back to the lower Appellate Court for hearing of the appeal on the merits.
6. Costs to abide the result. We assess the hearing fee at one gold mohur.