JUDGMENT
U.N. Sinha, J.
1. This is an appeal by the plaintiffs whose suit was dismissed by the learned Additional Munsif of Jehanabad and which decree has been upheld by the learned Subordinate Judge of Gaya.
2. The facts necessary for the determination of the question of law raised in this appeal are as follows : The appellants had instituted a title suit; numbered 57 of 1937 in the name of one Ramdeo Singh, father of respondents Ncs. 2 and 3. In that suit, there was an order for costs passed by this Court in favour of Ramdeo Singh when an order of remand had been passed by this Court. That decree was executed by the appellants in the name of Ramdeo Singh, and in execution of the decree, they purchased the disputed property in the name of Ramdeo Singh and obtained delivery of possession.
On the death of Ramdeo Singh. his sons applied for mutation of their names with respect to the property and in spite of the objection by the appellants, the application was allowed, and the appellants were dispossessed from the property in dispute. Hence the plaintiffs instituted the present suit. The suit was for declaration of the appellants’ title to the disputed property and recovery of possession of the property with mesne profits. The substantial defences of the contesting defendants was that a suit of this nature was barred under the provisions of Section 66 of the Code of Civil Procedure. The learned Additional Munsif, in agreement with the contention raised by the defendant, dismissed the suit holding that Section 66 of the Code of Civil Procedure was a bar to the maintainability of the suit. On appeal by the plaintiffs the learned Judge in the Court of ap-
peat below has also held that the present suit was not maintainable. Hence, this appeal.
3. Mr. Sinha, appearing for the appellants, has contended that the fads found in this case take it outside the purview of Section 66 of the Code of Civil Procedure. He has urged that, when a decree for money had been obtained in the name of Ramdeo Singh, the money was really owing to the plaintiffs appellants and Ramedo Singh was merely a trustee of the money for the plaintiffs. Learned Counsel has, therefore, contended that the purchase in satisfaction of such a decree in the name of Ramdeo Singh eon-verted Ramdeo Singh into a trustee for the plaintiffs appellants.
According to learned Counsel, the title that has been claimed by the appellants is not based on a benami purchase but it is based on a jural relation that had existed between the appellants and Ramdeo Singh, because the plaintiffs were the real decree-holders, and their decree was satisfied by the purchase in the name of Ramdeo Singh. In short, the argument of learned Counsel for the appellants comes to this that the plaintiffs were the real decree-holders, and as their decree was satisfied by the purchase of the disputed property they are entitled to the property.
4. In order to support the contention of learned Counsel he has relied upon the case of Mt. Bibi Kaniz Ayesha v. Mojibul Hussan Khan, reported in AIR 1942 Pat 230, He has also referred to two decisions mentioned therein, namely in the decisions of Ganga Sahai v. Kesri, reported in AIR 1915 PC 81, and Dwarka Prasad v. Mahadeo Prasad. AIR 1930 All 631.
5. From the facts of Bibi Kaniz Ayesha’s case AIR 1942 Pat 230 it appears that some of the heirs of a decree-holder had executed the decree and had purchased some property in execution thereof. In those circumstances, this Court stated thus :
“Even if these heirs cannot be regarded as joint decree-holders, the matter does not end there. There can be no doubt that defendants 1 and 2 were not entitled to reap the fruits of this decree. They were two out of four persons interested in the decree, yet they put the decree into execution, brought the property to sale and purchased it themselves. The purchase price of the property was the decretal amount and that sum clearly did not belong to defendants 1 and 2 alone but belonged to the four heirs of Mt. Fasihunnisa.
It was urged on behalf of the plaintiff that the purchase by defendants 1 and 2 was a purchase on behalf of all the heirs, and it enured for their benefit. Dr. Dwarka Nath Mitter, however, has contended that if this purchase by defendants 1 and 2 is regarded as a purchase not on behalf of themselves alone but on behalf of themselves and the other coheirs, then a claim by one of the co-heirs is barred by-reason of Section 66, Civil P. C. The terms of that section are as follows “No suit shall be maintained aga-first any person claiming title under a purchase certified by the Court in such manner as may be prescribed on the ground that the purchase was made on behalf of the plaintiff or on behalf of some one through whom the plaintiff claims.” It is urged that the moment the present plaintiff alleges that this purchase was made for the benefit of all the co-heirs his claim is bound to fall by reason of this section. ‘The scope of Section 66 has been frequently considered by their Lordships of the Privy Council. In ILR 37 All 545 : (AIR 1915 PC 81) Mr. Ameer Ali who delivered the opinion of the Board, observed at p. 554 : (of ILR All) : (at P. 82 of AIR).”
“In their Lordships opinion the provisions of that section (an earlier section corresponding to Section 66,
Civil P. C.) have no application to the present case. They were designed to create some check on the practice of making what are called benami purchases at execution sales for the benefit of judgment-debtors and in no way affect the title of persons otherwise beneficially interested in the purchase.”
6. In this part of the judgment their Lordships made a reference to the case reported in AIR 1915 PC 81. At page 233, their Lordships dealt with the decision reported in AIR 1930 All 631. It was stated that it was held in Dwarka Prasad’s case, AIR 1930 All 631 that where there is a fund belonging jointly to several persons and one of these persons makes a purchase of land with that fund, that purchase enures to the benefit of all the persons entitled to share in the fund. In my opinion however, this decision, of Bibi Kaniz Ayesha. AIR 1942 Pat 230, is distinguishable. Their Lordships have stated at page 232 thus :
“It is to be noted that it is not the plaintiff’s case that defendants 1, and 2 purchased on his behalf as well as on behalf of themselves. His complaint is that they wrongfully put this property up to sale and purchased it themselves for their own benefit. The plaintiff does not allege that this was a benami transaction, but what he does allege is that by reason of the fact that the property was purchased with joint funds the purchase enured to the benefit of all the persons interested in that joint fund. The case of the plaintiff is not that the purchase was benami. On the contrary he says it was a purchase made with intent to benefit only defendants 1 and 2 and to deprive the plaintiff of his right, but as the purchase was made with funds which was the property of all the heirs the Courts must presume that the purchase was made for the benefit of all.”
7. In the instant case, the plaintiffs themselves contend that when the property of the judgment-debtors was put up for sale, it was purchased in the name of Ramdeo Singh by the plaintiffs for their own benefit- With reference to the decision reported in AIR 1915 PC 81, it is enough to state that a case falling within the provisions of Order XXI, Rule 15, of the Code of Civil Procedure must be outside the purview of Section 66 of the same Code. The mischief which is meant to be prevented under Order XXI Rule 15 cannot possibly be defended under Section 66 of the Code. In my opinion, therefore, the decisions relied upon by learned Counsel for the appellants do not assist him in this particular case.
8. Learned Counsel for the respondents has relied upon the decision of Ali Ahmed v. Shamsun-nessa reported in AIR 1938 Cal 602. In my opinion the principles laid down in that decision are of assistance in the instant case. The facts of that case, briefly speaking, were as follows. The plaintiffs in that case had purchased what was called a mortaged bond in the benami of his son-in-law AH Ahmad, who was defendant No. 1. The plaintiff had then brought a suit on the mortgage obtained a decree and purchased in auction the mortgaged lands, all in the benami of defendant No. 1. The plaintiff took delivery of possession. It appears that the plaintiff had instituted a title suit, numbered 118 of 1927 for recovery of possession of certain properties and during the pendency of the dispute the plaintiff fell out with defendant No. 1. Defendant No. 1 executed a sale deed in favour of defendant No. 3 in respect of some of the lands and also his rights under the mortgage decree.
The plaintiff’s case was that the kebalas execut-ed by defendants No. 1 and defendants No. 3 were fraudulent, collusive and without consideration, and the defendant No. 1 had refused to execute a deed of relinquishment in accordance with the terms of a yaddasstnama executed by defendant No. 1. The
plaintiff prayed for a declaration of Ms title to the suit lands and for confirmation of possession. He also prayed for a declaration that he was the real purchaser of the mortgage bond, that he was the deal plaintiff in the mortgage suit and that he was the real purchaser at the auction sale, and for some other reliefs. One of the questions that arose was : whether the suit was barred by Section 66 of the Code of Civil Procedure or not. It was held in Ali Ahmed’s case, AIR 1938 Cal 602 that Section 66 of the Code was a bar to the maintainability of the suit. Their Lordships held that the fact that defendant No. 1 was a benamidar before the auction sale was also no answer to the objection under Section 66, for it did toot matter in their Lordships view how the certified purchaser had got his funds.
9. In my opinion, the decision of AH Ahmad’s
case, AIR 1938 Cal 602, answers the contention rais
ed by learned Counsel for the appellants to the ef-
fect that, as there was a jural relation between the
appellants and Ramdeo Singh before the purchase,
the purchase must be held to be for the benefit of
the appellants, and there is no bar to a declaration
that the appellants are entitled to the property. In
agreement with the submission of learned Counsel
for the respondents I hold that it has rightly been
held that the suit was not maintainable in view of
Section 66 of the Code of Civil Procedure. The appeal
must, therefore, be dismissed with costs.