JUDGMENT - MOHTA V. ANOOP, J.:—The applicants, in this Chamber Summons, being third persons to the judgment and decree, dated 31st May, 2002, prayed that the warrant of attachment, dated 12th January, 2004, issued in respect of the flat bearing No. 20, admeasuring 3300 sq.ft., on 20th floor of Silver Arch, 66, Nepean Sea Road, Mumbai, together with two car parking spaces bearing Nos. 12 and 85, on P-1 and P-2 levels, in Malbar Co-operative Housing Society Ltd., (for short society) and the shares pertaining to the said flat described in Schedule "A", be vacated and/or set aside.

2. The present execution Application No. 13/2004, is at the instance of original plaintiffs, Sumkin Bussan International (Hong Kong), whereby the immovable property, owned by Manharlal Trikamdas Modi, defendant No. 2, (judgment debtor) has been attached, by order dated 12th January, 2004. The plaintiffs, (judgment-creditors) have initiated execution proceeding under Order 21, Rule 54 of Civil Procedure Code (C.P.C.) based on an order dated 31st May, 2002 of High Court of Hong Kong, against defendant 1 and 2 through Hong Kong Action No. 4761/2001.

3. The case of the applicants in briefly stated is as under:

By the memorandum of understanding dated 6th June, 2003, applicants alleged to have entered into an agreement for sale with Mr. Manharlal T. Mody (judgment-debtor), defendant No. 2 and his wife Mrs. Meena M. Mody i.e. defendant No. 1 in respect of the premises in question. According to the applicants, they have deposited earnest money of Rs. 26,50,000/-, in terms of clauses of the memorandum of understanding. The first payment was made on 29th April, 2003 of Rs. 2,50,000/-. The next two payments were made on 6-6-2003 of Rs. 25 lacs. They have signed the form of consent, to the proposed transfer of shares and interest of the society. Some forms were signed by the judgment debtor, Mr. and Mrs. Mody and submitted to the society, on 6-6-2003. Relying on these, applicants have submitted that, even though the document has been styled, as memorandum of understanding, the same is in fact, an agreement for sale and the applicants are ready and willing to complete the said transaction with the judgment debtor (original defendants). It may be mentioned here that the property in question is in occupation of a tenant/licensor of the judgment debtor. The applicants as well as, judgment debtor, therefore, are not in actual occupation of the same premises in question.

4. Submissions:---In the Chamber Summons No. 777/2003, admittedly, there is an order of injunction in respect of the said premises in question. The applicant have taken out Chamber Summons No. 1776/2003 12th December, 2003 for vacating the said order of injunction and the same is still pending. Applicants contended that they are bona fide purchasers of the suit premises and had no notice of the earlier orders of injunction passed in the matter. The applicants have filed on record public notice, dated 17-6-2003 in respect of the said property. As agreement of sale has been entered into much prior to an order of injunction, or purported attachment, therefore, attachment is illegal. Applicants will suffer great irreparable harm, loss and injury, if the sale, in favour of the applicants, is not completed. Applicants came to know about the attachment on 29-1-2004 and therefore, they have preferred this Chamber Summons by 5-2-2004 itself.

5. Mr. D.D. Madan, Counsel for the applicants, in support of this Chamber Summons, relied on 1990(3) S.C.C. 291 (Vennarakkal Kallalathil Sreedharan v. Chandramaath Balakrishnan and another)1 and 1990(3) Bom.C.R. 389 (Usha Arvind Dongre v. Suresh Raghunath Kotwal)2.

6. Mr. Virag Tulzapurkar, Counsel, appearing on behalf of judgment debtor supported the Chamber Summon and argument of the applicants.

7. Mr. Madan, Counsel, appearing on behalf of appellants, relied on Vannarakkal (supra), in support of this case, that said memorandum of understanding in favour of a party entered into,

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