JUDGMENT : STANLEY, J. With all deference, we are unable to agree in the view expressed by the learned Judge of this Court who decided the second appeal from which this Letters Patent Appeal has been preferred. His decision is largely based upon the ruling of a Bench of this Court in a previous appeal between the same parties, Bishun Dayal v. Ghazi-ud-din,[1901] I.L.R., 23 All., 175.. The circumstances out of which this litigation has arisen are shortly as follows:— The appellant before us, Ghazi-ud-din, alleges that he purchased ‘ the property which is the subject-matter of the suit at an auction sale held in execution of a decree, which has been obtained against him, and that the purchase was carried out in the name of the plaintiff, Bishun Dayal, as a benamidar for him. Bishun Dayal was the certified purchaser of the property at the sale. After the sale, Ghazi-ud-din brought a suit against Bishun Dayal to have him (Bishun Dayal) declared a benamidar for him in the ‘ matter of the purchase, but the suit was dismissed on appeal to this High Court on the 15th of February, 1901. In the lower Court the plaintiff's claim had been decreed, but upon appeal the late Chief Justice, Sir ARTHUR STRACHEY, and our brother BANERJI, held that the decree could not be supported, having regard to the provisions of Section 317 of the Code of Civil Procedure. That section provides that “no suit shall be maintained against the certified purchaser on the ground that the purchase was made on behalf of any other person or on behalf of some one through whom such other person claims. “The suit which was instituted by Ghazi-ud-din was clearly brought in violation of the section to which we have referred, and when the case was brought on appeal to this High Court it was properly dismissed on the ground that the suit was not maintainable. The learned Judges decided nothing more than this. The learned Chief Justice says, “I think that the judgment of the lower appellate Court was wrong and that the suit was barred by Section 317 of the Code. I would therefore allow this appeal.” Our brother BANERJI, in his judgment, says, “I agree in holding that section 317 of the Code of Civil Procedure is a bar to the maintenance of the present suit. I would therefore allow this appeal.” Our brother BANERJI, in his judgment, says, “I agree in holding that section 317 of the Code of Civil Procedure is a bar to the maintenance of the present suit. The suit is one against certified purchasers on the ground that the purchase was made by them on behalf ofthe plaintiff. It therefore clearly comes within the purview of the first paragraph of section 317.” 2. The suit out of which the present appeal has been brought was brought by the plaintiff Bishun Dayal to recover from the defendant the rents and profits of the property which was the subject-matter of the earlier suit. Of that property, Ghazi-ud-diu was in possession at the date of the auction-purchase and he has continued in possession up to the present time. He has set up the defence in the present suit that he is the real owner of the property and that Bishun Dayal the plaintiff, is a benamidar for him. It was contended in the Courts below and also in the High Court that the determination of the appeal in the earlier suit to which I have referred debarred the defendant Ghazi-ud-din from setting up the defence that Bishun Dayal was a benamidar for him. This contention has found favour in all three Courts. It appears to us that in acceding to this contention the Courts have enlarged the scope of section 317. That section merely directs that a suit against a certified purchaser shall not be maintained. It does not go on to provide that a suit by a certified purchaser against a person in possession for rents and profits, or for possession of the property of which he has been recorded as the certifies purchaser, cannot be resisted on the ground that the certified purchaser is only a benamidar. 3. We are not prepared to extend the operation of the section beyond what the legislature has purported to do. 3. We are not prepared to extend the operation of the section beyond what the legislature has purported to do. The learned Judge of this Court in his judgment says,” It is true that if the present plaintiffs had brought the suit to which I have referred (we take the learned Judge to mean by this, if the plaintiffs had been plaintiffs in the earlier suit) the present defendant might have resisted the claim upon the ground that the plaintiffs, the certificated purchasers, were his benamidars; but since he chose to bring a suit for a declaration that the plaintiffs were his benamidars and he failed in that suit, he is not entitled to re-open the question of his title.” We are unable to agree with our learned brother in this, The decision of the Court in the earlier suit only amounted, as we have said, to a ruling that that suit was not maintainable. It did not go into the merits of the case, or consider the rights of the parties and, therefore, we are wholly unable to see how it can be held to debar the defendant from setting up any defence he may desire. It left the plaintiff in that suit exactly in the position in which he was when the suit was instituted, a position in which as we think, if his benamidar sought to enforce any right against him, he might properly set up his beneficial ownership as a defence to the suit. For these reasons it appears to us that the judgment of this Court and also the judgments of the lower Courts cannot be supported. ‘ We therefore set aside these decrees and, the case having been decided on a preliminary point, remand it to the Court of first instance, through the learned District Judge, with a direction that it be restored to its original place in the list of pending cases and be tried on the merits. The Court will see that the defendant has an opportunity of setting up the defence which he has raised in his written statement, namely, that he is the real owner of the property and that the plaintiff was merely his benamidar and must determine whether or not this defence is well founded. The appellant will have the costs of this appeal in any event. All other costs will abide the event.