An interesting question, as to whether a decree holder and a judgment debtor can insist on auction of a flat under attachment, when the petitioners who are admittedly in possession of the said flat, are willing to satisfy the decree by paying the decretal amount, arises for consideration in the present petition.

2. The facts necessary for adjudication of the present petition are as under:

3. It is the contention of the petitioners that one Abdul Gafoor Khan was owner of a flat bearing no. A/5, Ravidarshan C.H.S. Ltd., Carter Road, Bandra (West), Mumbai 400 050. It is further contention of the petitioners that the father of the petitioners namely K.L. Malick entered into an agreement for purchase of the subject flat with the said Abdul Gafoor Khan Wazir Khan on 4th March, 1971. It is their contention that said agreement was witnessed by respondent no. 2 Joginder Singh Sawhney. It is also their contention that in pursuance to the said agreement, Shri K.M. Malick was put in possession of the said flat. It is contended by the petitioners that by mistake the Society issued share certificate in respect of the said flat in the name of respondent no. 2, who according to them was close acquaintance and associate of their father. It is contended by the petitioners that in this premise, their father was required to get an agreement entered into between the respondent no. 2 herein, by which the respondent no. 2 agreed to sale the flat in the name of Mrs. Rajinder Malick, the wife of Shri K.L. Malick and mother of the petitioners. It is contended that accordingly an indemnity bond was also executed by the respondent no. 2 and that he also addressed a letter to the Society, to transfer the shares so also the flat in the name of Mrs. Rajinder. It is contended by them that since then the petitioners’ parents resided in the said flat till death and that the petitioners were also in possession of the said flat alongwith their parents and after the death of their parents, they continued to be in possession.

4. A commercial suit no. 332/1972 was filed by the respondent no. 1 against the respondent no. 2 at Delhi, for recovery of an amount of Rs. 10,000/-. The said suit was decreed on 26th February, 1975. The decree was put in execution by the original decree holder. However, since the defendant claimed not to have any property in Delhi to satisfy the decree, the decree was transferred to the City Civil Court at Bombay for execution. Subsequently the said exparte decree was assigned in favour of the respondent no. 3, by the original decree-holder.

5. In the said execution proceedings, an order of attachment came to be passed in respect of the said flat. On noticing that the warrant of attachment was issued in respect of the said flat on 24th April, 1989, the mother of the petitioners vide Chamber Summons No. 857/1989 in Delhi Suit No. 332/1972, had prayed for lifting the attachment in respect of the said flat. The learned Judge of the City Civil Court, Mumbai vide order dated 20th February, 1991 dismissed the said chamber summons. Vide order dated 12th December, 1994 the learned Judge of the City Civil Court fixed the reserved price of Rs. 49,50,000/-and issued consequential directions regarding auction of the said flat. In the meanwhile, the mother of the petitioners had also filed a Short Cause Suit No. 73605/1994 before the City Civil Court, Mumbai. In the said suit a Notice of Motion No. 6137/1994 was also filed for the ad-interim orders against the respondents 1 and 2 herein restraining them from executing the decree passed in Delhi Suit No. 332/1972. After considering the statement on behalf of the plaintiffs, that they are willing to deposit the decretal amount, the learned City Civil Court vide order dated 14th December, 1994 granted an ad-interim relief. However, since the said suit was not pursued, the notice of motion was rejected on 13th August, 1997 and suit was also dismissed for want of prosecution on 12th September, 199