RAMESH HIMMATLAL SHAH Vs. HARSUKH JHADAVJI JOSHI

JUDGEMENT

(1.) AN important point of law under the provisions of the Maharashtra Co -operative Societies Act, 1960 (hereinafter called 'the Societies Act') arises in this Letters Patent Appeal against the judgment and order passed by my learned brother Vaidya J. in the appeal by the judgment -debtor against the order of the learned Judge of the City Civil Court dismissing the Chamber Summons taken out by him. An ex parts decree for a sum of Rs. 20,000 and odd was passed in the suit by the decree -holder, on March 31, 1970. The decree -holder then took out a warrant of attachment of Flat No. 9 in the building belonging to Paresh Co -operative Housing Society Ltd., a Society registered under the Societies Act. The flat was attached on August 8, 1970 after serving the warrant on the judgment -debtor in the jail at Rajkot. He appears to have been convicted in a criminal case and was, therefore, suffering imprisonment at Rajkot. The decree -holder thereafter applied for the sale of the said flat and a warrant of sale was accordingly issued on October 16, 1970. A copy of it was served on the judgment -debtor again in the jail.

(2.) DURING the course of the execution proceedings the judgment -debtor's brother Hasmukh Joshi took out a Chamber Summons challenging the execution on the ground that the said attached flat did not belong to the judgment -debtor but belonged to him and that the attachment therefore should be raised. The Chamber Summons was made absolute but on appeal this Court set aside the order and remanded the matter for rehearing. After the matter was remanded the learned Judge of the City Civil Court dismissed the Chamber Summons on September 30, 1971. By that time the judgment -debtor was out of the jail and therefore after some time in the year 1972 he filed a suit to set aside the money decree against him. He also took out a Notice of Motion on February 20, 1972 for the stay of the execution. The Notice of Motion was, however, dismissed on March 14, 1972.

(3.) THE judgment -debtor then filed a Chamber Summons on March 20, 1972 praying for the dismissal of the execution petition filed by the decree -holder and for setting aside the warrant of attachment and proclamation of sale on the ground that the flat being a flat in a co -operative housing society was not liable to be attached and sold. It was also stated that there is no saleable interest of the judgment -debtor in the said property in terms of Section 60 of the Civil Procedure Code and that therefore the property is not liable to attachment. The Chamber Summons was resisted by the decree -holder on the ground of delay on the part of the judgment -debtor in moving the Court and taking of the summons for the reason that his interest was not subject to attachment under Section 60 of the Civil Procedure Code. The learned Judge of the City Civil Court, who heard the Chamber Summons, dismissed it, although the judgment of this Court in Kaluram Puranmal v. S.S. Malpathak (1971) O.C.J. Suit No. 507 of 1964, decided by Vimadalal J., on September 11, 1971 (Unrep.) was cited before him. He distinguished the facts - and circumstances of the case in the original suit before this Court with the facts and circumstances in the Chamber Summons wherein the judgment -debtor did not refer to any Bye -laws of the Society where the impugned flat was. That decision of the learned Judge of the City Civil Court was challenged in appeal by the judgment -debtor.