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High Court Of Calcutta
A. M. BHATTACHARJEE, AJIT KUMAR NAYAK
URMILA BALA DASI - Appellant
Versus
PROBODH CHANDRA GHOSH - Respondent
. . Of .
Decided On : 10/12/1988
BENAMI TRANSACTIONS - PROHIBITION OF THE RIGHT TO RECOVER PROPERTY ORDINANCE, 1988 - S. 2 (1) - SCOPE - WHETHER APPLIES TO PENDING PROCEEDINGS - HELD, YES.
Fact of the Case:
The petitioner had obtained a decree declaring her title to the disputed property, which was reversed by the appellate court, holding that the petitioner and her deceased mother were mere Benamidars. The opposite party applied for restoration of the property under S. 144 of the Civil P. C. and the trial court allowed the same. The petitioner filed an objection and prayed for the recall of the order, contending that it was no longer sustainable in view of the Benami Transactions (Prohibition of the Right to Recover Property) Ordinance, 1988.
Finding of the Court:
The court held that the proceeding under O. 21, R. 35, which had given rise to the revisional application, was a proceeding in execution and not a suit. It further held that the proceeding was an "action" within the meaning of S. 2 (1) of the Ordinance. The court also held that the Ordinance applied to pending proceedings, as the expression "shall lie" used in S. 2 (1) demonstrated the Legislature's clear intention to regulate all such suits, claims, or actions that would be lying in Court on the date of its commencement.
Issues: 1. Whether the proceeding under O. 21, R. 35, was a suit, claim, or action within the meaning of S. 2 (1) of the Ordinance? 2. Whether the Ordinance applied to pending proceedings?
Ratio Decidendi: 1. The court held that the proceeding under O. 21, R. 35, was not a suit but an "action" within the meaning of S. 2 (1) of the Ordinance. The court relied on the definition of "action" in Halsbury's Laws of England and the decision of the Punjab High Court in National Insurance Co. Ltd. v. Shanta Devi, where it was held that the word "action" is of very wide amplitude, much wider than the word "suit". 2. The court held that the Ordinance applied to pending proceedings, as the expression "shall lie" used in S. 2 (1) demonstrated the Legislature's clear intention to regulate all such suits, claims, or actions that would be lying in Court on the date of its commencement. The court also noted that the Long Title of the Ordinance declared its object to be "to prohibit the right to recover property held Benami" and that the provisions of S. 2 of the Ordinance were intended to effectuate this object.
Final Decision: The court allowed the revision and quashed the proceeding of the court below for recovery of possession of the disputed property and the order directing issuance of writ of delivery of possession, as illegal and violative of the provisions of S. 2 of the Benami Transactions (Prohibition of the Right to Recover Property) Ordinance, 1988.
( 1 ) ). THE decree of the trial court declared the title of the petitioner in respect of the disputed property negativing the contention of the opposite parties that the petitioner and her deceased mother were mere ostensible owners or Benamdars and the petitioner could recover possession of the property in execution of that decree. The decree, was, however, over-turned by the first Appellate Court and its judgment has thereafter been affirmed by this Court in second appeal in Urmila Dasi v. Probodh Chandra Ghosh (since reported in 89 Cal WN 465, holding that the petitioner and her deceased mother were mere Benamdars of the petitioner's father in respect of the disputed property, which having been duly inherited by his second wife, the opposite party No. 2, could be and was properly conveyed by her to and in favour of the opposite party No. 1. The decree of the trial court in favour of the petitioner having thus been reversed in appeal the opposite party No. 1 applied to the trial Court under S. 144 of the Civil P. C. for restoration of the disputed property to him and the trial court has allowed the same ex parte by its order dt/- 4th March, 1988 and has directed the petitioner to restore possession of the disputed property to the opposite party No. 1 and the opposite party No. 1 has now made an application under O. 21, R. 35 of the Civil P. C. for the issuance of a writ of delivery of possession. The petitioner has filed objection to the said application and has also prayed for recall of the order dated 4th March, directing restoration of possession mainly on the ground that the said Order is no longer sustainable and the application under O. 21, R. 35 for issuance of writ of delivery of possession is no longer maintainable in view of the provisions of the Benami Transactions (Prohibition of the Right to Recover Property) Ordinance, 1988 promulgated by the President of India on 19th May. 1988. The trial court, however, by its order dated 20-07-1988, directed issuance of the writ of restoration of possession and the same has been assailed before us by the petitioner in revision.
( 2 ) ). The sole argument advanced by Mr. Mukherjee, the learned Counsel for the petitioner, being based on the provisions of S. 2 (1) of the aforesaid Ordinance, the same may be reproduced hereinbelow for the facility of discussion :-"2. (1) No suit, claim or action to enforce any right in respect of property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property. "
( 3 ) THE proceeding under O. 21, R. 35, which has given rise to the present revisional application is a proceeding in execution. This is not obviously a suit not having been initiated by the presentation of a plaint or in any other manner prescribed therefor as provided in S. 26 of the Civil P. C. It may be little surprising that the framers of the Ordinance, instead of using the usual expression "suit or other proceeding," have chosen to use the expression "suit, claim or action". A proceeding in execution of a decree is obviously a proceeding to enforce a claim. The decree, is to borrow from S. 2 (2) of the Civil P. C. a "formal expression of an adjudication" accepting or rejecting the claim made by the parties in the suit, but the decree by itself does not enforce the claim until the decree is executed and satisfied, or unless the decree is complied with out of the Court. While a suit may, be a claim to the relief prayed for therein and the decree is a formal declaration or recognition of such claim or a direction to grant such claim, the claim so declared, recognised or directed to be granted, can only be enforced by the execution of that decree unless, as already pointed out, the claim is adjusted or satisfied out of Court. We do not think that there should be any room for doubt that when a party proceeds with the execution of a decr
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