(1.) A short and interesting point has come up for consideration in the Second Appeal. The appellants have come against a concurrent decision of the two Courts below The plaintiffs in the suit had alleged that the property which originally belonged to Puma and' his brothers was sold in auction in Rent Execution Case No. 703 of 1937. The plaintiff Purna and defendant No 1, Dhruba and the other son of Anukul, Kalipada by name purchased the property in the benami of one Kalipada Patra On these allegations the plaintiffs succeeded in the Suit and also in the First-Appeal.
(2.) Mr. Mukherjee has challenged both the judgments on the ground that the plea of benami is untenable in view of section 4 of Benami Transactions (Prohibition) Act of 1988 hereinafter called the Act. It is contended that the plaintiffs cannot claim to have acquired any interest in the property by virtue of purchase of the same in the benami of Kalipada Patra. Mr. Banerjee appearing for the respondents contends that the Court is not entitled to entertain such plea since the whole appeal has abated. There is no controversy that the plaintiffs-respondents Tarapada and Guiram died on 27-12-1983 and 13-2-1982 respectively. The appellants filed a petition for setting aside abatement on 14-6-1988.An application under section 5 of the Limitation Act was also filed on 10-3-1989. The appellants sought to set aside the abatement by virtue of these two petitions. J. N. Hore, J. by order dated 11-4-1989 dismissed the said application.
(3.) The question arises as to whether the court can still entertain the plea of the appellants as to benami in spite of this unsuccessful attempt to set aside abatement. It cannot be disputed that the decrees passed by the two courts below are joint decrees. Unless the decrees are severable the surviving. appellants cannot proceed Mr. Mukherjee very much relies upon the decision in State of Punjab vs. Nathuram, AIR 1962 SC 89 to contend that the court has to decide as to whether the entire appeal abates, and until such decision is made the action must be deemed to have been pending in this court. He means to say that an action continues until the judgment is delivered. According to Mr. Mukherjee, the court can very well enter into the question of benami until the court finally finds that the entire appeal has abated I have already found that the entire appeal abates since a decree' is a joint decree. If the entire appeal abates and there is no pending proceeding before this court no decision can be invited as to whether the decree-passed by the two courts below is void on account of the mischief under the Act. In other words, the court cannot be invited to adjudicate as to whether the decree is void in view of section 4 of the Benami Transactions (Prohibition) Act, 1988. Unless an appeal is pending before this court a mere adjudication as to whether the entire appeal abates or otherwise on account of severence of the decree or otherwise does not afford an opportunity to the court to enter into the question as to whether section 4 of the Act hits the suit. In my opinion, therefore, inspire of pendency of an: action in the strict sense of the term or rather in the narrower sense of the term, this court cannot enter into the merit to decide as to whether the suit or as a matter of that the appeal comes within the mischief of the Act.