2000 (7) TMI 66 - SC - Benami Property

Supreme Court clarifies Benami Transactions Act applicability in execution proceedings under Civil Procedure Code

Probodh Chandra Ghosh Versus Urmila Dassi And Another

The Supreme Court allowed the appeal, setting aside the High Court's revisional order. The Court held that the Benami Transactions (Prohibition) Act, 1988 ... Whether the provisions of the Benami Transactions (Prohibition of the Right to Recover Property) Ordinance, 1988, which has been replaced by the Benami Transactions (Prohibition) Act, 1988, will apply to execution proceedings arising out of the proceeding under section 144 of the Civil Procedure Code, initiated by the transferee from the heiress of the real owner against the benamidar? Held that:- High Court fell into error in interpreting section 4 to be retrospective in operation. In fact the word 'claim' means something on which a right is sought to be enforced for which there is a denial. In the present case, we find, when possession was ordered, allowing the application under section 144 of the Civil Procedure Code, on March 4, 1988, there was no contest by the respondent. Thus, when the order is passed under Order 21, rule 35, formally restoring the possession it was not only consequential order to the order without contest, so any claim if at all stood satisfied prior to the Act coming into force. In any case it cannot be construed to be a claim or action taken after the Act came into force. Passing an order under Order 21, rule 35, is an act of the court, it is not an act by way of action or claim made by the appellant. What is barred is the making of a claim or action by the original owner. The appellant is the owner and he has not made any such claim. The claim if at all was making application under section 144 which was prior to the Act, which would be deemed to be pending when the Act came into force. Hence, all these reasons and submissions on behalf of the respondents, have no force. No bar to these proceedings would be said by virtue of section 4 of the Act. Appeal allowed. Issues:1. Interpretation of the Benami Transactions (Prohibition) Act, 1988 in execution proceedings.2. Application of section 4 of the Act to pending claims or actions.3. Retroactive application of section 4(1) of the Act.4. Definition of 'claim' and 'action' under section 4.5. Determining the timing of the claim under section 144 of the Civil Procedure Code.Analysis:1. The Supreme Court considered the appeal against a High Court order in a case involving execution proceedings under section 144 of the Civil Procedure Code. The main issue was whether the Benami Transactions (Prohibition) Act, 1988 applied to such proceedings initiated by a transferee against a benamidar.2. The Court analyzed the application of section 4 of the Act to pending claims or actions. It was debated whether the Act barred suits, claims, or actions by real owners against benamidars. The timing of the claim in relation to the Act coming into force was crucial in determining the applicability of section 4.3. The retroactive application of section 4(1) of the Act was a point of contention. The Court examined whether the section operated retrospectively, affecting past transactions between real owners and benamidars. The interpretation of this aspect was vital in deciding the outcome of the case.4. The definition of 'claim' and 'action' under section 4 was scrutinized. The Court clarified that a claim involved seeking to enforce a right with a denial, emphasizing the importance of contestation in determining the nature of a claim under the Act.5. The timing of the claim under section 144 of the Civil Procedure Code was crucial. The Court determined that since the claim was made prior to the Act coming into force, it was deemed pending at the time of enactment. This analysis was pivotal in establishing the validity of the appellant's claim in the case.6. Ultimately, the Supreme Court allowed the appeal, setting aside the High Court's revisional order. The Court held that the High Court erred in deeming section 4 to be retrospective and clarified that the appellant's claim was not barred by the Act. The decision was based on a thorough analysis of the legal provisions and the timing of the claim in relation to the Act.