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5. In Ganga Sahai v. Keshri A.I.R. 1915 P.C. 81, one of the three joint decree-holders of a mortgage decree had alone taken out execution under Section 231 of the old Code stating that the other decree, holders had died and praying that the execution might be subject to the rights of their heirs and representatives, and on that account had obtained leave to bid at the sale and actually purchased the property in his own name and, furnished with a certificate of sale, got possession of the property. Their Lordships held that the heirs of the other decree-holders were entitled to receive their shares from him and that Section 317 of the Code of 1882 was not applicable as a defence of the suit. Their Lordships took care to point out that Ganga Sahai, one of the decree-holders, had tried to perpetuate a fraud against his co-decree-holders under cover of that section and emphasized that his application for execution had been made under Section 231 of the Code and was made professedly subject to the rights of his co-decree-holders, and pointed out that had he not even embodied this reservation in his petition, the Court executing the decree would have of its own motion protected the interests of the other decree-holders. Their Lordships accordingly held that the heirs and representatives of the other decree-holders were entitled to recover their one-third share of the property purchased by Ganga Sahai in execution of the joint mortgage decree.

I do not think that there is any difference between the case where one of the partners in a partnership, which is in existence for other purposes, buys property from the joint fund in his own name, and the case where there is a partnership in a single adventure in which two or more persons agree to unite their funds for the purpose of purchasing the property.

13. As already pointed out the case before Richards, J. was quite different and was clearly distinguishable inasmuch as there the plaintiff and the defendant had been co-decree-holders. "With great respect, we are unable to agree with the view expressed by the Bombay High Court that if two persons privately enter into an agreement to purchase property in the name of one at auction, Section 66, Civil P.C., would have no application. In Baijnath Das v. Bishan Devi A.I.R. 1921 All. 185 certain property was purchased at auction in execution of, a decree by a father in a joint Hindu family benami in the name of his wife. A suit brought by the members of the family against the wife who defended the claim was held not to be maintainable as she was not a member of the joint Hindu family and she could take shelter behind the provisions of Section 66, Civil P.C. In Ram Rup Teli v. Khaderu Teli A.I.R. 1928 All. 619 the father of a joint Hindu family had made a purchase at an execution sale in the name of an outsider. One of the members who had got some property at the family partition brought a suit to recover possession, but was resisted by the ostensible purchaser. The Bench held that the claim was barred by Section 66, Civil P.C.