TaxTMI 
TaxTMI 
TaxTMI 
2000 (7) TMI 66
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....r the provisions of the Benami Transactions (Prohibition of the Right to Recover Property) Ordinance, 1988, which has been replaced by the Benami Transactions (Prohibition) Act, 1988, will apply to execution proceedings arising out of the proceeding under section 144 of the Civil Procedure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. In other words, the submission is, whether the words, "action" and "claim", appearing in section 4 of the Act means and includes a proceeding under section 144 of the Civil Procedure Code. The short facts are that the disputed suit property was originally in the name of one Tulsi Bala. A part of this suit property lying in plot No. 615 was purchased in the name of....
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....nt which was also dismissed on August 7, 1987. Consequently, on April 17, 1986, the appellant filed an application under section 144 of the Civil Procedure Code, for restoration of possession. On March 4, 1988, the application for restoration was allowed. However, three months' time was granted to the respondent to restore back the possession. The case is that in these proceedings, the respondent did appear but did not contest the same. At this point of time the cause of action of the present disputes arose as during this interregnum on May 19, 1988, the Benami Transactions (Prohibition of the Right to Recover Property) Ordinance of 1988, came into force. On July, 20, 1988, a writ for restoration of possession to the appellant was issued u....
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....ng as the real owner of the property hence the present application under section 144 of the Civil Procedure Code, would be barred. Learned counsel for the appellant relying on the aforesaid decision submits that section 4(1) is not retrospective hence it would not apply to the pending proceedings, viz., suits, claims and actions which are already filed prior to the coming into force of section 4. In other words, what is barred is the filing of the suit, claims or actions by the real owner enforcing his right in respect of any property held by a benamidar. The aforesaid decision further records that the operation of sub-section (1) of section 4 also includes past transactions where any right is acquired by any one as a real owner, in respect....
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.... misconceived. This court in the earlier part held this section to be not retrospective but what this last quoted portion refers to is, it would cover past transactions between the real owner and the benamidar. The transactions in other words may be of the past but the suit, claim or action would not lie subsequent to the coming into force of the Act. He further submits, in the earlier proceedings, as we have referred to above, the matter became final between the parties, where it is recorded that the respondents are benamidars. If that be so, the present action by the appellant would not lie. We do not find any merit in this submission, What is to be seen in terms of section 4 is, whether the appellant has filed any suit, claim or action ....
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....which culminate only when possession is delivered under the decree and as that was done through an order under Order 21, rule 35 of the Civil Procedure Code, which was subsequent to the aforesaid Ordinance hence the claim of the appellant was barred by section 4 and the same is unsustainable in law. This submission is based on a misconstruction of section 4. In the present case it is not necessary for us nor are we adjudicating the periphery of the word "claim" or "action" under section 4 as to whether it would include execution proceedings or not. Here, we are merely deciding, whether on the admitted facts, any claim, action or suit was pending or not or whether the appellant has filed any suit, claim or action after the Act came into forc....