JUDGMENT : Burkitt, J.:— This is in some respects a peculiar suit. One Habib Alam, who is a cousin of the defendant-respondent, Aziz Alam, obtained a decree for money against Masud Alam, father of Aziz Alam. In execution of that decree he put up for sale the one-third share of Masud Alam in some house property. It was sold by auction and purchased by the defendant, Aziz Alam, son of Masud Alam. The purchase money at the auction was duly deposited in Court and was paid to the decree-holder Habib Alam. Sometime afterwards Habib, probably hearing that the auction purchaser was the son of the judgment-debtor, thought that he might try to get some more money out of this property, and so he attached and put up again for sale the same interest in the same house property which had been attached and sold under the former decree. It was purchased by the plaintiff-appellant, Khuda Bakhsh. When the latter attempted to obtain possession under his purchase, he was obstructed, and he thereupon brought a suit for possession against the decree-holder and against Masud Alam and two other persons who were alleged to be co-parceners in the house property. Aziz Alam was afterwards made a defendant to that suit under section 32 of the Code of Civil Procedure. The suit was decreed by the Court of first instance, but on appeal that decree was reversed by the learned Subordinate Judge, who most absurdly found that the suit was barred by the second clause of section 317 of the Code of Civil Procedure, The learned Subordinate Judge evidently failed to observe that this suit was not one to obtain a declaration. His reason therefore for dismissing the suit cannot be supported. But I am of opinion that for, other reasons the suit must stand dismissed. The only defendant impleaded as a respondent to this appeal is Aziz Alam, and I have to consider the suit only as against him. 2. Now on the frame of the suit in the original array of parties the plaintiff, perhaps not unwisely, avoided any mention of Aziz Alam but it was perfectly clear that as Aziz Alam was the certified purchaser, the suit could not be fought out without his presence. He was therefore made a defendant. 2. Now on the frame of the suit in the original array of parties the plaintiff, perhaps not unwisely, avoided any mention of Aziz Alam but it was perfectly clear that as Aziz Alam was the certified purchaser, the suit could not be fought out without his presence. He was therefore made a defendant. It was contended for the defendants before the Subordinate Judge that the suit was one which is forbidden by the first clause of section 317 of the Code. I am of opinion, though not without some slight hesitation, that such is the case. The suit as against the defendants other than Aziz Alam is not at all effected, by section 317, and in fact they are only nominal defendants. But when we come to the case of Aziz Alam and look to see what is the relief which the plaintiff must be considered to seek against him, it is clear that as regards Aziz Alam the suit can be maintained only on the ground that the purchase of the one-third share in the house property made by Aziz Alam was made on behalf of his father. The plaintiff-appellant, being the auction purchaser at the second sale, of course, could have no title against Aziz Alam if the purchase by the latter had been from his own funds and for his own purposes. 3. But it has been found as a fact that the purchase by Aziz Alam was not a purchase for himself but was a purchase for his father, and that the funds with which he made the purchase Were supplied by his father. Aziz Alam admittedly is the certified purchaser of this property, and from what I have said above, it is clear that this suit can succeed against him only on the ground that it has been proved that the purchase made by Aziz Alam was a benami purchase in his father's interest. To use the words of section 317 the suit as against Aziz Alam is maintainable only “on the ground that the purchase was made on behalf of another person.” That I think is the mischief aimed at by the first clause of section 317. To use the words of section 317 the suit as against Aziz Alam is maintainable only “on the ground that the purchase was made on behalf of another person.” That I think is the mischief aimed at by the first clause of section 317. It is perfectly clear that unless Aziz Alam was made a party, the suit could not possibly succeed, and that on his being made a party-it can succeed only on being proved that he was benami for his father. That is the kind of suit that section 317 forbids. For the reasons given above, although I may say that I disagree with everything contained in the judgment of the lower Court, I must dismiss this appeal with costs.