Benami property recovery barred in execution, with the saving clause held inapplicable to a benamidar.

The Kerala HC construed the Benami Transactions (Prohibition of the Right to Recover Property) Ordinance, 1988 as barring not only suits but also execution proceedings to enforce any right in respect of benami property, because execution is a mode of recovering the property itself. The phrase "in respect of" was given a wide meaning, so a decree remained unenforceable while the subject-matter was benami property. The Court also held that a benamidar is not a trustee or fiduciary for the saving clause, and relied on the repeal of section 82 of the Indian Trusts Act, 1882, to conclude that the real owner's right to recover benami property stood extinguished.

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Issues: Whether execution of a decree for recovery of property held benami is barred by section 2(1) of the Benami Transactions (Prohibition of the Right to Recover Property) Ordinance, 1988, and whether the saving provision relating to a trustee or fiduciary capacity preserves the decree-holder's right.

Analysis: The Ordinance was construed as prohibiting not only suits but also claims and actions to enforce any right in respect of property held benami, and execution proceedings were held to fall within that prohibition because they are a mode of enforcing the decree-holder's right to recover the property. The words "in respect of" were given a wide meaning so as to cover enforcement of a decree whose subject-matter remained benami property until execution. The Court further held that a benamidar is not a trustee or person standing in a fiduciary capacity for the purpose of the saving clause, and that the repeal of section 82 of the Indian Trusts Act, 1882, together with the scheme and preamble of the Ordinance, showed an intention to extinguish the real owner's right to recover benami property after the Ordinance came into force.

Conclusion: The execution petition was barred by section 2 of the Ordinance, and the revision petitioner succeeded.

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