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TMI Blog1988 (10) TMI 6X X X X Extracts X X X X X X X X Extracts X X X X ..... thus been reversed in appeal, opposite party No. 1 applied to the trial court under section 144 of the Civil Procedure Code for restoration of the disputed property to him and the trial court has allowed the same ex parte by its order dated March 4, 1988, and has directed the petitioner to restore possession of the disputed property to opposite party No. 1 and opposite party No. 1 has now made an application under Order 21, rule 35 of the Civil Procedure Code 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 March 4, 1988, directing restoration of possession mainly on the ground that the said order is no longer sustainable and that the application under Order 21, rule 35 for the issuance of a writ for 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 May 19, 1988. The trial court, however, by its order dated July 20, 1988, directed issuarce of the writ of restoration of possession and the same has been assailed befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cepted by the court by making formal expression of adjudication to that effect and to seek enforcement of that adjudication by any legal process would be seeking to enforce that claim. We are also inclined to think that this proceeding claiming issuance of a writ for delivery of possession is also an "action" within the meaning of section 2(1) of the Ordinance. The expression "action", though a frequent visitor in the realm of English law and legislation, is probably a stray visitor in our legislations. But there should be no reason to think that it has been used in any restricted sense of original action only which ends with a decree or final order. A suit or similar original proceeding may end with a decree or an order ; but, if further legal actions in the shape of execution proceedings are necessary for the enforcement of such decree and order, those proceedings are also "actions" to enforce the right or claim granted by such decree or order. As will appear from Halsbury (3rd Edition-Volume 1, page 2), even in English law, the term "action" is not invariably used in the sense of an original proceeding only and "according to the legal meaning of the term, is a proceeding by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alleging to be the real owner against the benamidar. There should, therefore, be no doubt that the object of the Ordinance is not, only to bar suits stricto sensu, but all claims and actions which would further the enforcement of the rights of an alleged real owner against the benamidar. Mr. Roy Chowdhury, appearing for the respondents, has not very seriously disputed that a proceeding in execution like the present one may be regarded to be a "claim" or "action" within the meaning of section 2(1) of the Ordinance. But what he has very seriously urged is that the proceedings under Order 21, rule 35, for the issuance of a writ for delivery of possession having been initiated before the promulgation of this Ordinance of May 19, 1988, the Ordinance cannot apply to the present proceeding which was already pending at the date of commencement of the Ordinance. But, there is no authority for the blanket proposition that new law, even affecting substantive rights, cannot apply to pending proceedings without express words to that effect, as pointed out by the Supreme Court in Shyabuddinsab Mohidinsab v. Gadag-Betgeri Municipal Borough, AIR 1955 SC 314, 320. The view that pending proceedin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce as well as post-independence apex courts, far from frowning upon those transactions, have approved them as legal and valid. It is only as late as in 1972 that our Parliament could show its awareness to this menace by inserting section 281A in 1972 in the Incometax Act of 1961, though that measure has not yielded the desired result. The Law Commission, in its 57th report in 1973 on benami transactions, drew our serious attention to enact a law outlawing benami transactions and suggested the necessary amendments. But the authorities concerned did not take the matter into serious consideration for about 15 years and only in May, 1988, this Ordinance has been promulgated on the basis of the recommendations of the Law Commission. The long title of this Ordinance expressly declares the object to be "to prohibit the right to recover property held benami". It is well-settled that the long title of a legislation is an enacting part of the legislation and is legitimately admissible to aid its construction. It may not control, circumscribe or widen the scope of the legislation, if the provisions thereof are otherwise clear and unambiguous ; but, if the terms of the legislation are capable ..... X X X X Extracts X X X X X X X X Extracts X X X X
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