Heard learned counsel for the parties

This appeal is directed against the order of the High Court dt. 12th October, 1988, allowing the application under s. 115, CPC, through which the order dt. 20th July, 1988, was challenged, in case No. 13 of 1986, whereby a writ for delivery of possession under O. 21, r. 35, of the CPC was made

The question raised for our consideration is, whether the provisions of Benami Transaction (Prohibition of Right to Recover Property) Ordinance, 1988, which has been replaced by Benami Transactions (Prohibition) Act, 1988, will apply to an execution proceedings arising out of the proceeding under s. 144, CPC, initiated by the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 s. 4 of the means and includes proceeding under s. 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 sole heiress. Some time in 1952 in Revisional Settlement operation the property was recorded in the names of Anil Mani Dassi and Urmila Dassi. Anil Mani Dassi, on 10th May, 1967, sold the entire suit property to Probodh Chandra Ghosh, the appellant before us after getting the said suit property in partition. Dasarathi was amongst the other co-sharer and this property of Jadavpur was allotted to Urmila Bala exclusively. Immediately after the aforesaid purchase by the said Probodh Chandra Ghosh, he took possession of the suit property. This led to the filing of the suit by the respondent. She prayed for a declaration of her title and also for declaration that the aforesaid sale deed dt. 10th May, 1967, was not binding on her and for the recovery of possession of the same. Her case was that the suit property was purchased by her mother from her Stridhan. The suit was decreed. Thereafter, the appellant filed an appeal and during the pendency of the appeal, the respondent Urmila Dassi took possession of the suit property on 21st February, 1976, from the appellant by executing the decree through Court. Finally, the appeal was disposed of and the decree of the trial Court was reversed. Thereafter, the respondent Urmila Dassi preferred a second appeal which was disposed of by confirming the appellate Court judgment and decree. Against this judgment, SLP was preferred by the respondent which was also dismissed on 7th August 1987Consequently on the 17th April, 1986, the appellant filed an application under s. 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 interregnum on the 19th May, 1988, Benami Transaction (Prohibition of Right of Recovery Property) Ordinance of 1988 came into force. On the 20th July, 1988, a writ for restoration of possession to the appellant was issued under O. 21, r. 35. On the 30th July, 1988, possession was delivered to the appellant. This delivery of possession was challenged by the respondent Urmila Dassi before the Calcutta High Court. This revision was allowed and the order for delivery of possession to the appellant was set aside on the ground that the same is violative of the provision of s. 2 of the aforesaid Ordinance which is s. 4 of the. It is this order in revision, which is the subject-matter of challenge before us. It is interesting that both, the learned counsel for the appellant and learned counsel for the respondent are relying on the same judgment reported in S. Rajagopal Reddy (dead) by Lrs. vs. Padmini Chandra Sekharan (dead) by LRs. 1995 SC 2016. Learned counsel for the appellant, with reference to s. 4 of the said Act submits that provision of s. 4 of the is not retrospective in operation and hence, as his claim if at all was pending when the came into force, hence s. 4 would have no application. Thus, finding to the contrary recorded by the High Court is liable to be set aside, while counsel for the respondent submits, this decision holds s. 4 to be retrospective in operationThis section spells out

"No suit, claim or action to enforce any right in respect of any property held by benamidar shall lie by or on behalf of a person claiming to be real owner of this property." *

Based on this for the respondent it is submitted that it is not in dispute that the respondent is holding the property as benamidar, and the appellant is claiming as the real owner of the property hence the present application under s. 144, CPC, would be barred. Learned counsel for the appellant relying on the aforesaid decision submits that s. 4(1) is not retrospective hence it would not apply to the pending proceedings, viz., suits, claims and action which is already filed prior to the coming into force of s. 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-s. (1) of s. 4 also includes past transactions where any right is acquired by any one as a real owner, in respect of the property held by a Benamidar. This is highlighted with the illustration, namely, if a Benami transaction has taken place in 1980 and suit is filed in June, 1988, by the plaintiff claiming that he is a real owner of the property and defendant is merely a Benamidar then such a suit would not lie in view of s. 4(1), this Court in the said decision held:

"With respect, the view taken that s. 4(1) would apply even to such pending suits which were already filed and entertained prior to the date when the section came into force and which has the effect of destroying the then existing right of plaintiff in connection with the suit property cannot be sustained in the face of the clear language of s. 4(1). It has to be visualised that the legislature in its wisdom has not expressly made section retrospective." *

However, learned counsel for the respondent relies on another portion of the same decision, which is quoted hereunder

"It is, however, true as held by the Division Bench that on the express language of s. 4(1) any right inhering in the real owner in respect of any property held Benami would get effaced once s. 4(1) operated, even if such transaction had been entered into prior to the coming into operation of s. 4(1), and hence after s. 4(1) applied no suit can lie in respect to such a past Benami transaction. To that extent the section may be retroactive." *

The submission for the respondent relying on this quoted portion is misconceived. This Court in earlier part held this section 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

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 s. 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 suit, claim or action was pending on the date this Act came into force, then it would continue to be adjudicated in accordance with law and bar of s. 4 would not be applicable. This leads us to find, what are the facts in the present case, whether the suit, claim or action has been filed subsequent to the coming into operation of the said Act or what was pending then. If it was pending, then bar of s. 4 would not apply. The facts as recorded above is, after passing of the decree in favour of the respondent by the trial Court, during the pendency of the appeal the decree was executed and respondent got the possession of the suit property. Subsequent after reversal of the trial Court order, the claim of the appellant became final when respondents special leave petition was dismissed by this Court. Then the appellant made an application under s. 144, CPC, on the 17th April, 1986. On the 4th March, 1988, the said application was allowed. Though the respondent appeared in the proceedings but did not contest the same. It is only thereafter on the 19th May, 1988, the aforesaid Ordinance came into force. On the 20th July, 1988, a writ of restoration of possession was given under O. 21. r. 35, and the possession was actually delivered on 30th July, 1988Learned counsel for the respondent submits the claim or action under s. 4 includes the execution proceedings which culminates only when the possession is delivered under the decree and as that was done through an order under O. 21, r. 35, CPC, which was subsequent to the aforesaid Ordinance hence the claim of the appellant was barred by s. 4 and the same is unsustainable in law. This submission is based on the misconstruction of s. 4. In the present case it is not necessary for us nor we are adjudicating the periphery of the word "claim" or "action" under s. 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 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 appellant was when he filed an application under s. 144, CPC, on the 17th April, 1976, which is prior to the coming into force. Even an order was passed allowing the same on 4th March, 1988, which was prior to the said Ordinance coming into force. Merely restoring possession, subsequent to the said Act under O. 21 r. 35, would have no effect on the bar of s. 4. Once it is undisputed that an application under s. 144, CPC, was made prior to the then the claim would be pending on the date when the came into force. Once it could be said the claim was pending then in terms of the said s. 4, such a claim would not be barred

Accordingly, we find High Court fell into error in interpreting s. 4 to be retrospective in operation. In fact word claim means something on which right is sought to be enforced for which there is a denial. In the present case, we find, when possession was ordered, allowing application under s. 144, CPC, was passed on the 4th March, 1988, there was no contest by the respondent. Thus, when order is passed under O. 21, r. 35, formally restoring the possession was not only consequential order to the order without contest, so any claim if at all stood satisfied prior to the coming into force. In any case it cannot be construed to be a claim or action taken after Act came into force. Passing an order under O. 21, r. 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 making 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 s. 144 which was prior to the, which would be deemed to be pending when Act came into force. Hence, for all these reasons the submissions on behalf of the respondents have no force. No bar to these proceedings would be said by virtue of s. 4 of theAccordingly, we allow this appeal and set aside the impugned revisional order dt. 12th October, 1988, of the High Court. Costs on the parties.