Bombay High Court
Mithilesh Kumari
Versus
Prem Behari Khare
Decided On:

Headnote:BENAMI TRANSACTIONS (PROHIBITION) ACT, 1988

       Sections 3 and 4-Suit for declaration and possession-Decreed-First appeal dismissed -Second appeal also dismissed Property standing in name of benamidar-During pendency of appeal the Benami Transactions (Prohibition) Act, 1988 came into force-Effect-Held-Appellate Court is competent to take into account legislative changes-Power are not confined-Person sued not only when the plaint is tiled but is used also when suit is remained pending-Suit could not be decreed accordingly dismissed.

       The appellate Court is entitled to take into account even facts and events which have come into existence after the decree appealed against. Consequently the appellate court is competent to take into account legislative changes since the decision under appeal was given and its powers are not confined only to see whether the lower courts decision was correct according to the law as it stood at the time when its decision was given. once the decree of the High Court has been appealed against, the matter became sub-judice again and thereafter this Court had seizing of the whole case, though for certain purposes, e. g. execution the decree was regarded as final and the courts below retained jurisdiction in that regard.

       "A person is "sued" not only when the plaint is filed against him, but is "sued" also when the suit remained pending against him. The word "sued" covers the entire proceeding in an action."

       The plaintiff-respondents suit or action cannot be decreed under the law; and hence the decree passed by the lower courts is annihilated and the suit dismissed.

       For Citation : 1989 Mah LJ 210 at pp. 220, 221 (SC)