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2000 (7) TMI 66 - SC - Benami PropertyWhether the provisions of the Benami Transactions (Prohibition of the Right to Recover Property) Ordinance, 1988, which has been replaced by the Benami Transactions (Prohibition) Act, 1988, will apply to execution proceedings arising out of the proceeding under section 144 of the Civil Procedure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.
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