PROBODH CHANDRA GHOSH versus URMILA DASSI AND ANR.

Citation: [2000] SUPP. 1 S.C.R. 672 · Decided: 25-07-2000 · Supreme Court of India · Bench: AJAY PRAKASH MISRA, RUMA PAL · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
PROBODH CHANDRA GHOSH 
v. 
URMILA DASSI AND ANR. 
JULY 25, 2000 
B 
[A.P. MISRA AND MS. RUMA PAL, JJ.] 
Code of Civil Procedure, 1908: 
S. 144, Order 21, Rule 35-Application for restitution-Applicability of 
C Benami Transactions/Prohibition Act, 1988-Execution proceeding arising 
out of proceedings under S. 144 initiated by transferee Application u!s. 144 
allowed on 4. 3.1988-Three month's time granted to respondent to restore 
possession-Respondent not contesting the same-Meanwhile w. ej 19. 5.1988 
Benami Transactions Prohibition Act came into operation-On 30. 7.1988 
D possession delivered to appellant-Delivery of possession challenged in 
revision before High Court as violative of s.4 of the Act-Revision allowed-
Held, the claim or action, if at all, which could be said to have been made 
by appellant was when he filed the application u!s. 144 on 17.4.1976 which 
is prior to the Act coming into force-Even order passed allowing the same 
on 4.3.1988 was prior to it-merely restoring possession under Order 21, 
E Rule 35 subsequent to the Act, would have no effect on the bar of s. 4 of the 
Act Passing an order-Order 21, Rule 35 is an act of Court, it is not an act 
by way of action or claim made by appel/ant-Benami Transactions 
Prohibition Act, 1988-S.4. 
F 
S. Rajagopal Reddy (dead) by Lrs. v. Padmini Chandra Sekharan (dead) 
by Lrs. (1995) 2 SCC 630, referred to. 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2351 of 1989. 
From the Judgment and Order dated 12.10.88 of the Calcutta High Court 
G in c.o. No. 2613 Of 1988. 
H 
S.K. Bhattacharya for the Appellant. 
N.R. Choudhary and J.P. Pendey for the Respondents. 
The following Order of the Court was delivered : 
672 
\ 
PROBODH CHANDRA GHOSH v. URMILA DASS! 
673 
Heard learned counsel for the parties. 
A 
This appeal is directed against the order of the High Court dated 
October 12, 1988 allowing the application under Section 115, CPC, through 
which the order dated 20th July 1988 was challenged, in case No. 13 of 1986, 
whereby a writ for delivery of possession under Order 21, Rule 35 of the CPC B 
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which has been replaced by Benami Transactions Prohibition Act, 1988 will 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 Section C 
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 D 
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 E 
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 F 
also for declaration that the aforesaid sale deed dated 10th May, I 967 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 G 
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, 1987. 
H 
674 
SUPREME COURT REPORTS [2000] SUPP. I S.C.R. 
A 
Consequently on the 17th Ap

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