TMI Blog2000 (7) TMI 983X X X X Extracts X X X X X X X X Extracts X X X X ..... Transaction (Prohibition of right to recover property) Ordinance 1988, which has been replaced by Benami Transactions Prohibition Act, 1988 will apply to an execution proceedings arising out of the proceeding under Section 144 CPC, initiated by the transferee from the heiress of the real owner against the benamidar. In other words, submission is, whether the word action and claim , appearing in Section 4 of the Act means and includes proceeding under Section 144 CPC. 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 Urmila Dassi who is respondent before us and after the death of Tulsi Bala she became the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed an application under Section 144 CPC for restoration of possession. On the 4th March, 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 inter magnum on the 19th May, 1988, Benami Transaction (Prohibition of right to recover property) Ordinance of 1988 came into force. On the 20th July, 1988 a writ for restoration of possession to the appellant was issued under Order 21 Rule 35. On the 30th July, 1988 possession was delivered to the appellant. This delivery of possession wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hence the present application under Section 144, CPC 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 is 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 acquired by any one as a real owner, in respect of the property held by a benamidar. This is highlighted with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion to be not retrospective but what this last quoted portion refers is, it would cover past transactions between real owner and 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 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 subsequent to the coming into operation of the present Act or not? If su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... through an order under Order 21 Rule 35 CPC 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 the misconstruction of Section 4. In the present case it is not necessary for us nor we are 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 force? As we have recorded above the claim or action, if at all, which could be said to have been made by the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X
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