The right of a resident of a tenanted property to file a Chamber Summons to set aside a warrant of attachment, even if not the owner of the property, based on the tenancy and lack of ownership by the respondents.

1. Plaintiff has taken out this Execution Application in the year 2008 based upon the arbitration award of the year 2001 against the defendants including defendant no.2, who is husband of the applicant. This court, based upon the execution application issued warrant of attachment of immovable, as well as, movable property as contemplated under Order 41, Rule 43 of Code of Civil Procedure (C.P.C.) and in that proceedings, the immovable as well as movable property of the applicant got attached. Therefore, this applicants Chamber Summons.

2. Plaintiff, the decree holder, can attach movable and immovable property of the judgment debtor and the property, though in the name of third person, if it is averred and supported by documents that holding is in Trust and has right to dispose of it, therefore, entitled to attach and sell those properties, as contemplated under Section 60 C.P.C. and/or even otherwise.

3. The property in question, as averred, and not denied by the plaintiff is tenanted residential premises. Judement/ debtor is not the owner of the immovable property. Mere residential address shown that itself in my view is not sufficient to attach immovable property, based upon the decree in question. In support of Chamber Summons and the affidavit, documents are filed to show/demonstrate that the property i.e. immovable as well as, movable are not owned by the judgment debtor/defendants.

4. The learned counsel appearing for the plaintiff, however, submitted that the applicant has no locus-standi to file and/or move such Chamber Summons for withdrawal of warrant of attachment in question. She is neither defendant/ respondent nor the owner of the property in question. The applicant has averred that she is residing in the premises since long. Her husband is in Jail. The tenancy of the premises was in the name of mother-in-law of the applicant, i.e. mother of respondent no.2. After her death, the occupants including respondent no.2 and the applicant, unless evicted is entitled to retain the physical possession of the property. In view of this, I am inclined to observe that once the attachment of tenanted premises as done in the present case, itself is illegal and/or impermissible, the issue of locus standi, looses it's importance. There is no one else, to challenge and ask for possession of the property in question. Therefore, I am inclined to observe that the Chamber Summons taken out by the applicant, who is resident of the tenanted flat in question, which is admittedly not owned by the respondents, is entitled to move such application for setting aside the warrant of attachment.

5. What remains is the movable property in the premises. Considering the averments so made in support of the affidavit as supported by the documents and there is no contra material placed on record by the plaintiff, as the applicant is residing in the premises since long, I am inclined to observe that the plaintiffs failed to prove that all the movable properties lying in the premises are owned, only by respondent no.1 and/or the respondents or applicant has no right to dispose of if, or holding on his behalf. The applicant has no even full tenancy interest in the premises.

6. Therefore, taking overall view of the matter and considering the averments so made by the applicant, and the documents so placed and in view of undisputed position on record, the Chamber Summons is allowed in terms of prayer clauses (b) and (b) (for movable as well as immovable property). No costs.

7. The Execution Petition so filed to proceed with in accordance with law.