T.C.I. FINANCE LIMITED Vs. SHAAN INTERWELL

JUDGEMENT

(1.) The applicant, is wife of defendant/judgment debtor respondent no.3, who along with other respondent's took loan/finance from the plaintiff sometime in 1994. There were defaults, therefore the suit came to be filed to recover the amount. By the judgment dated 1st August 2006, decree was passed against all.

(2.) Plaintiff filed this Execution Application at Mumbai based upon the decree at Secunderabad (Andhra Pradesh) under Order 21, Rule 11(2) Code of Civil Procedure (C.P.C.). The requirements of Rule 1 to 14 which need to be ascertained by the Court before taking any action as prayed. The sufficient reason and detail must be provided for attachment of movable or immovable property, specially when it is not in judgment debtor's possession. For attachment of immovable property, more caution and care must be taken. The decreeholder can not attach immovable property without providing documents and details of ownership. An execution application should be clear and with details as required. Any order passed, thereon in most of the time without notice and as its affecting rights will have serious consequences specially on the third party/person. To claim damages for such illegal or unauthorised action or attachment is long drawn process specially for the third person, apart from delay in getting order of attachment or such order released or withdrawn. There is a procedure under C.P.C. to ask for details of the property, apart from security of the decretal amount. If the case is made out, for withdrawal or release of such order/attachment, the Court may not go in for the trial. The requirement is early determination of the issue or objections, in the execution application itself, not by a separate suit.

(3.) By affidavit, they averred that the flat in question i.e. 3/45, Gokul Swastik Park, Chembur, Mumbai 400 071 is ownership residence of respondent no.3. There is no further averments in the affidavits and/or supporting documents to show that the flat is owned by respondent no.3 and/or has power to dispose off it under Section 60 of C.P.C. The flat was not even mortgaged with the plaintiff.