The Benami Transactions (Prohibition) Act of 1988 and the Benami Ordinance are not retrospective in operation and cannot be applied to nullify decrees or to deny execution to the decree holder.

P.K. Balasubramanyan, J.

These revisions are by three judgment debtors against the common decree holder in the three suits. The judgment debtors are the brothers of the decree holder. The plaintiff, brother was employed outside the country. According to him he was sending monies to his brothers and he wanted them to purchase some properties. The brothers purchased properties in their own names and refused to give the properties to the plaintiff-brother, when he came back to this country. The plaintiff brother hence filed those suits for recovery of possession of the properties on the plea that the consideration for the purchases proceeded from him and he was the beneficial owner of these properties. The defendants resisted the suits. On 31.7.1985 the suits were decreed by the trial court. Appeals were filed by the defendants before this Court All the appeals were dismissed by this Court holding that the defendants' brothers were trustees of the property and S.82 of the Indian Trusts Act applies. The decision in the appeals is reported in Narayanan v. Gangadharan (1988 (1) KLT 933). The decision in the appeal was rendered on 27.8.1987. Thus in these cases not only the suits were instituted before the coming into force of the Benami Transactions Prohibition Ordinance 2 of 1988 which was followed by the Benami Transactions (Prohibition) Act of 1988 but even the appellate decrees were rendered prior to the coming into force of the Benami Ordinance.

2. The plaintiff sought to execute these decrees. The properties were delivered over in execution though of course, that fact was disputed by the defendants. In execution, the defendants filed applications claiming that in view of the Benami Ordinance, the properties could not delivered and the decrees could not be executed. These objections were over rued by the executing court. C.R.P. Nos. 1586,1587 and 1588 of 1988 were filed in this Court. There was a fourth suit filed by the plaintiff against another brother which had also reached this Court. A learned Single Judge of this Court appears to have taken the view that even though the suit was prior to the Benami Ordinance sod the decree was also prior to the Benami Ordinance, the decree could not be executed in view of the Benami Ordinance. The said decision is reported in Narayanan v. Gangadharan (1988 (2) KLT 307). This Court therefore allowed the three revisions and remanded the matter to the executing court for fresh decision. It is brought too or not that the decision in 1988 (2) KLT 307 is pending in appeal before the Supreme Court as Civil Appeal No. 1782 of 1989.

3. After remand by this Court, the executing court held that the property had been delivered over even before the coming into force of the Benami Ordinance and hence these was no question of applying that Ordinance or the subsequent Act to deny the decree holder the fruits of toe decree. Thus the claims of the petitioners were rejected. It is the said rejection that is challenged in these revisions by the judgment debtor's brothers

4. It is row clear from the decision of the Supreme Court in R.Rajagopal Reddy v. PathnM Chandrasekharan ((1995) 2 SCC 630) and the subsequent decisions Including the one in Pawan Kumar Gupta v. Rochirain Nagdeo (1999) 4 SCC 243) that the Bengali Ordinance and the Benami Prohibition Act are not retrospective in operation. In these cases, the suits were filed before the Ordinance, the suits were decreed before the Ordinance, the appeals were dismissed before the Ordinance and the deliveries were effected before the Ordinance. There is therefore, no question of tie Became Ordinance or the Benami Act being applied to find that the decrees have become in executable.

5. We are also of the view that the decision in Narayanan v. Gangadharan (1988 (2) KLT 307) cannot be considered to be good law. In Asserikandy Kallian v. Kwhimadhavi Antma (1998 (2) KLT 941) this Court has taken a different view. It is pointed on that the decision in Asserika