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2013 Supreme(Bom) 1050
High Court of Judicature at Bombay
ANOOP V. MOHTA, J.
Smt. Kusum Harilal Soni & Another
Versus
Smt. Chandrika Nandlal Mehta
Chamber Summons No. 1249 of 2009 In Execution Application No. 318 of 2005 In Application/Case No. 13 of 1996
Decided on: 14-06-2013
For the Petitioners:Yogesh P. Yagnik, Advocate.
For the Respondent:Chirag Balsara, Ms. A. Irani, Manish Doshi i/b Vimadalal & Co., Advocates.
Headnote:Civil Procedure Code, 1908 - Order XXI, Rules 22 and 54 Setting aside of attachment of property. - Where claim of daughter of judgment debtor that she is owner of attached property as she had purchased it from judgment debtor much prior to execution application, was supported by documents therefore order setting aside attachment warrants no interference. It is relevant to note that the decree holder in such execution application by raising such objection of collusion and/or the documents being fraudulent, cannot justify their unilateral action of attaching the property of third person in such a fashion, as the same was done before verifying the title/relevant documents. The applicant just cannot attach the property of the third person to execute the decree against the Judgment-Debtor unless supporting documents and material placed on record to show that the property, if they want to attach, is owned and/or belongs to the judgment-debtor only.
In an execution proceeding like this, the concerned office/officer just accepted the averments made by the decree holder/plaintiff and attached the immovable or the movable property. The applicant has moved such chamber summons to get the order of attachment and/or lifted and filed supporting documents. The plaintiff/decree holder for the first time wants to adjudicate and/or challenged those documents in their execution application to support their basic case of attachment. This, in my view, is not permissible mode as it definitely affects and create the complication with regard to the third person’s property title/ownership and also their right to enjoy the possession of the properties.
Normally, whosoever wants to challenge and/or ownership of any immovable and/or movable property, has to initiate the proceeding in accordance with law. In this proceeding,
The plaintiff-decree holder first discharge/support the case by initiating appropriate proceedings in accordance with law and after getting declaration and/or proving the averments so made of collusion and/or fraudulence may initiate such proceeding again.
1. Applicant, the daughter of the Respondent, has taken out this Chamber Summons to set aside the warrant of attachment of the immovable as well as movable properties therein i.e. Flat No.408, Saidham Co.-op. Society, Sodawala Lane, Borivli (West), Mumbai, being not a party to the proceedings between the Plaintiff and the Respondent-Judgment Debtor.
2. The brief facts as per the applicant are as under:
“(a) On 11.06.1995, the Agreement was executed between the Respondent and the Applicant by which the Respondent agreed to sell flat No.408, Saidham Co-operative Society, Sodawala Lane, Borivli (West), Mumbai-400 092 to the Applicant for a total sum of Rs.4,25,000/- which was then the prevailing actual price of the said flat.
(b) On 06.12.2000, the Contempt Authority- Bandra passed an order directing Chandrika Nandlal Mehta (Respondent-Judgment Debtor) to pay an amount of Rs.8,000/- per month.
(c) On 0.04.2001, CRA No.678 of 2001 was dismissed. On 10.04.2001, Special Leave Petition No.7022 of 2001 was filed and the Hon'ble Supreme Court granted exparte stay of the order dated 10.04.2001. On 26.06.2001, the Deed of Transfer for full consideration of Rs.4,25,000/- executed by the Judgment-Debtor in favour of the Applicants in respect of the flat.
(d) On 21.08.2001, a share certificate in respect of the flat recorded the transfer in favour of Chetna Kushroo Batty (the Applicant herein).
(e) On 20.12.2001, Kusum H. Soni (Applicant in the Execution Proceedings) filed an injunction Application in the said execution proceedings under Order 21 Rules 41 and 42 of the Code of Civil Procedure, 1908. On 18.03.2002, the Hon'ble Supreme Court vacated the aforesaid stay and SLP No.7022 of 2001 was dismissed as withdrawn. Thereafter on 12.04.2002, order allowing the aforesaid injunction application.
(f) On 22.04.2007, Notice No.900 of 2006 filled under Order 21 Rule 22 made absolute. On 02.02.2009, warrant of attachment and sale in respect of the suit flat and the movables lying in the suit flat. On 30.05.2009, Kusum H. Soni through her C.A. Shri K. Vaishnav addressed a letter to the Society enquiring in whose favour of the flat stands. On 01.09.2009, Society by letter informed that the suit flat stands in the name of Chetna N. Mehta (nee Batty) and not in the name of Mrs. Chandrika N. Mehta. Thereafter, on 31.07.2009, the present Chamber Summons was filed.
(g) On 12.03.2011, affidavit in reply was filed. The only allegation against the Applicant to the Chamber Summons is that the Respondent and the original Claimant are in collusion and conspiracy with each other. Despite the aforesaid fact, no substantive proceeding has been filed to set aside the Deed of Transfer and share certificate in favour of the Applicant herein. On 02.05.2013 rejoinder was filed by the Applicant.”
3. The Applicant has filed sir-rejoinder to the same. Strong reliance was placed by the learned Counsel appearing for the Respondent-Judgment Debtor on the evidence/cross-examination of the Respondent (Smt. Chandrika) in the main Application No.13 of 1996, whereby it is stated that “I have another premises being flat no.408 in Saidham Society in Borivali. The said premises stand in the name of myself and my daughter Chetana in joint name. The said premises being purchased for my daughter Chetana and after her marriage she will be residing therein. My daughter is aged about 32 years. The said premises has been let out by us.” The learned Counsel appearing for the Respondent contended that the averments so made in supporting affidavit as well as in the additional affidavit and the documents so filed in no way takes away the rights of the Judgment-Debtor to attach the immovable, as well as, the movable properties to recover the dues as per decree/order which has attained finality. The submission is also made that the transactions and the documents so relied upon are collusive in nature and these documents are also fraudulent. Therefore, the attachment order so passed nee
