Law:

Section:

Section 2 of the Benami Transactions (Prohibition of the Right to Recover Property) Ordinance, 1988 - Right to recover property held benami -Whether a proceeding for execution of a decree passed in a benami suit passed before promulgation of abovementioned Ordinance is 'claim' or 'action' and in any event 'action' to enforce a right in respect of property held benami contemplated under section 2 and is, hence, invalid after promulgation of Ordinance - Held, yes - Whether section 82 of the Indian Trusts Act, 1882 stands repealed by section 2 and hence it is impossible for a person claiming to be real owner to institute a suit for recovery of properties, relying on section 82 of the Indian Trusts Act, 1882 - Held, yes FACTS The plaintiff filed a benami suit, which was decreed in his favour, accepting the case of the plaintiff that the property belonged to him although it stood in the name of the respondent. The petitioner's appeal against execution of the decree was also not successful. On revision, the petitioner contended that the execution petition was not maintainable in view of the prohibition contained in section 2(1). The respondent however, contended that proceedings for execution of a decree though passed in a benami suit, could not be said to be a 'suit', 'claim' or 'action' to enforce any right in respect of any property held benami contemplated under section 2, and if that was so, the execution petition was maintainable in law. If it was held otherwise, the executing Court which could not go behind the decree ordinarily would be able to go behind the decree and give relief to the petitioner which was specifically denied to him by the trial Court. It was also contended that section 4 read with section 2 (3)( b) made it clear that section 2 had no retrospective operation and, therefore, the rights of parties already determined by the passing of the decree could not be reopened. HELD Neither of the expressions 'claim' or 'action' has been defined. It is, therefore, necessary to give these words apposite meanings and to accomplish this, one has to keep in mind the purpose and subject-matter of the statute. Having regard to the Dictionary meaning of these…

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