VRAJLAL JAGJIVANDAS PANDYA Vs. JASWANTLAL SHIVLAL

JUDGEMENT

(1.) THIS is an appeal under Section 47 of the Code of Civil Procedure at the instance of original opponent No. 1 the judgment -debtor. Respondent No. 1. herein obtained a decree in Summary Suit No. 26 of 1966 on the file of City Civil Court, Ahmedabad for Rupees 12,991/ - and interest thereon against the present appellant. Respondent No. 1 herein applied for execution of the said decree by seeking to attach the part of the plot No. 14 belonging to the judgment -debtor the appellant herein and situated within Hindu Colony Co -operative Housing Society Limited. The appellant raised certain objections against the execution contending, inter alia, that the plot of land or a portion of it is not liable to be attached as he has no right or interest in the said plot of land which in fact and law belonged to the Co - operative Society and it was merely allotted to a member by the Society and, therefore, he had no saleable interest whatsoever therein. The appellant also contended that in any case the part of the plot of the land sought to be attached was transferred by him to his wife by way of gift and, therefore, also the property in question was not liable to be attached and sold in execution of the decree.

(2.) SO far as the first contention was concerned, the Executing Court accepted the contention of the judgment -debtor that he was merely an allottee of the plot of land from the Co -operative Society concerned and that the allotment by a Society to a member does not amount to a transfer and does not create any interest in the plot of land in favour of the member concerned. However, in the opinion of the Executing Court, the plot of land directly represented the judgment -debtor's contribution in the Society towards the land purchase account and, therefore, what was really attached was not the piece of land but corresponding contribution of the judgment -debtor in the land purchase account of the Society which is admittedly the property of the judgment -debtor.

(3.) AT the time of hearing of this appeal, Mrs. K.A. Mehta, learned Advocate, appearing for the judgment -debtor who is appellant before me, urged that the judgment -debtor who is an allottee -member of the Co -operative Society concerned has no right or interest in the plot of land allotted to him by the Society and, therefore, the Executing Court was in error in directing the sale of the plot of land sought to be attached by respondent No. 1 who is a judgment -creditor. In submission of Mrs. Mehta, on true construction of the relevant Bye -laws of the Society concerned, there is no saleable interest in the plot of land allotted to a member and, therefore, the order directing the sale of the plot of the land must be set aside.