The Benami Transactions (Prohibition) Act, 1988 bars a decree-holder from proceeding against properties claimed to be benami, even if the decree-holder claims that the real owner is the judgment-debtor.

Nainar Sundaram, J.:

The appellant in this Letters Patent Appeal is the decree-holder and execution proceedings the appellant wanted to proceed against properties standing in name of the respondent, but advancing a case that the real owner of the properties is judgment-debtor Jamal Mohideen Papa, who is none else than the father of the respondent. In substance, the appellant wanted to say that the respondent is only a benamidar for father Jamal Mohideen Papa, the judgment-debtor. The respondent preferred a regarding the properties. The first court dismissed the claim petition, holding that respondent is only a benamidar for the judgment-debtor and that the real owner is only judgment-debtor. The order of the first court is dated 5.8.1983. The matter was taken this court by way of an appeal C.M.A.No.610 of 1983. While the said appeal was pending, the Benami Transactions (Prohibition) Act 45 of 1988, hereinafter referred to as the came into effect. One of the questions that relevantly arose for consideration, on urged on behalf of the respondent herein, before the learned single Judge who dealt with appeal C.M.A.No.610 of 1983 was as to whether the decree-holder, the appellant herein, could proceed against the properties on the basis that the respondent held and holds properties only benami for the judgment-debtor and the real owner is only the judgment debtor. The learned single Judge took note of the pronouncement of the highest court in land, after the Act came into force, speaking on the subject which we shall presently to, and also after adverting to the scope, purport and intendment of the Act, held that not possible to countenance the claim of the decree-holder, the appellant herein, that respondent herein is only a benamidar for the judgment-debtor. The learned single Judge has also gone into the factual questions as to whether the judgment-debtor is the real of the properties and the respondent herein is only a benamidar for the judgment and answered them against the appellant herein. As a result, the learned single Judge allowed the and set aside the order of the first court. This Letters Patent Appeal is directed against judgment of the learned single Judge.

2. In Mithilesh Kumari v. Prem Behari Khare, (1989)2 S.C.C. 95, it has been countenanced that the provisions of the Act are retrospective in operation and they will apply to arising out of suits, claims or actions, since appeals are only continuation of proceedings. The pronouncement of the Supreme Court has been taken note of by one (Nainar Sundaram, J.) in Minor Habib Rahan and others v. Ramu Pandaram, (1990)2 337. That was a case of the application of the law as per the Act, which came into subsequently at the stage of a second appeal.

3. However, what Mr.B.Kumar, learned counsel for the decree-holder, the appellant urges is that Sec.4 brings in only a prohibition with reference to suit, claim or action by behalf of the person claiming to be the real owner and in the present case the decree the appellant herein, is not a person claiming to be the real owner and he cannot also to be prosecuting a suit, claim or action on behalf of a person claiming to be the real namely, judgment-debtor, and hence the provisions of the Act cannot be invoked to the prosecution of the execution proceedings against the properties, treating the judgment debtor as the real owner thereof. This contention has been repelled by the learned Judge, and in our view, rightly also. The very pronouncement of the Supreme Court, to above, has exhaustively assessed the scope, purport and intendment of the Act inspite of that, we will not be in order to construe the set of expressions" on behalf person claiming to be the real owner of such a property" occurring in Sec.4 as excluding its ambit and purview, a decree-holder who has no other case except to say that properties though not standing in the name of the judgment-debtor are only his, so as available for being proceeded against in