1999 INSC 0985
                                  SUPREME COURT OF INDIA

                                             C.Gangacharan

                                                  Versus

                                              C.Narayanan

                                   Civil Appeal No. 1782 of 1989

                                   (B.N. Kirpal and R.P. Sethi JJ)

                                               14.12.1999

JUDGMENT

    1. There is more than one reason for allowing this appeal. It appears that the appellant had sent
         money from abroad to the respondent to enable him to purchase properties in his own name
         and in the names of his other brothers in India. The appellant on 20.7.1983 filed OS No. 349
         of 1983 for possession of the suit property or its market value. The case of the appellant was
         that the money which was sent wrongly utilised in purchasing the properties in the name of
         the respondent and the brothers instead of purchasing the same in the name of the appellant.

    2. On 31.7.1985, suit for possession was decreed with costs and mesne profits were to be
         determined in execution proceedings. The respondent filed an appeal to the High Court
         which dismissed the same on 27.8.1987, inter alia, holding as follows :

         "There is no evidence in this case to show that the plaintiff wanted to benefit the defendants
         when he provided funds for purchase of landed properties. On the other hand, the evidence is
         overwhelming in this case to the effect that money was sent by the plaintiff to the defendant
         in OS No. 349 of 1983 for the specific purpose of purchasing landed properties in the name
         of the plaintiff, but, instead, he purchased the properties in the name of himself and his other
         brothers with the funds so provided by the plaintiff. Therefore, it has to be held that the
         plaintiff is the beneficial owner and he is entitled to recover possession of the plaint schedule
         properties from the defendants in these suits. In our view his is a case where Section 82 of
         the Indian Trusts Act squarely applied."

         A Special leave petition filed by the respondent was dismissed by this Court on 7.4.1988.

    3. The appellant them filed an execution application being EP No. 90 of 1988 before the trial
         Court. Before the said application was disposed of, on 19.5.1988 the Benami Transactions
         (Prohibition of the Right to Recover Property) Ordinance, 1988 was promulgated. Basing on
         this Ordinance, objections were filed by the respondent to the effect that the decree could not
         be executed in view of the provisions of the said Ordinance. The executing Court disallowed
         the objections and thereafter the respondent filed a revision petition before the High Court.
         By judgment dated 2.8.1988, the petition was allowed and in the impugned judgment it was
         observed that the said Ordinance of 1988 prohibited the recovery of possession of the suit
    property which was being held by the respondent as a benami of the appellant herein.
4. It is now well settled that the executing court cannot go behind the decreed of a court of

    competent jurisdiction except when the decree is void ab intio or without or without
    jurisdiction. In the present case, the High Court on 27.8.1987, as is evident from the passage
    quoted hereinabove, had given a categorical finding to the effect that the respondent herein
    was only a trustee and the case was governed by Section 82 of the Indian Trusts act. Section
    4 which contains the prohibition to recover the property held benami expressly provides in
    sub-section (3), clause (b) that the said section is not to apply, inter alia, in a case where the
    property is held in the name of a trustee. In view of the finding of the High Court in its
    judgment of 27.8.1987 that the property was being held in the name of the respondent as a
    trustee, the question of the respondent invoking the provisions of the Benami Transactions
    Ordinance or the Act did not arise. The provisions of the Act did not prohibit a suit being
    filed against a trustee for the recovery of the trust property.
5. That apart, this Court in R. Rajagopal Reddy v. Padmini Chandrasekharan has held that the
    said act did not apply to pending suits which had already been filed and entertained prior to
    the coming into force of Section 4 of the Act. This being so, the High Court in the present
    case fell in error in setting aside the decision of the executing court and in holding that the
    right of the appellant to recover possession had come to an end by virtue of the said Act.
6. For the aforesaid reason, the appeal is allowed and the judgment of the High Court under
    appeal dated 2.8.1988 is set aside, with costs throughout.
7. By order dated 16.9.1991, the respondent herein was directed to deposit Rs. 10,000 in the
    trial court towards annual mesne profits. When this deposit was not made, an application
    was filed by the appellant for appointment of a Receiver in respect o the Suit property. By
    order dated 8.2.1993, the appellant himself was appointed as Receiver and was put in
    possession but he was required to deposit Rs. 10,000 per year in the trial court. In view of
    the fact that the appellant has now succeeded in this appeal, he is entitled to retain the
    possession of the property as an absolute owner thereof and will be entitled to withdraw
    from the trial court the amount deposited by him pursuant to the aforesaid order of this
    court.