UNION BANK OF INDIA Vs. MITTERSAIN RUPCHAND

JUDGEMENT

(1.) BY the present Chamber Summons, which is taken out by the defendants, the defendants have prayed that the Notice of Attachment dated 27th September, 1989 in Execution Application No. 229 of 1989 issued in the above suit and attachment levied pursuant thereto be set aside and/or raised; that the ex parte order dated 9th March, 1990 passed by this Court in Notice No. 119 of 1990 in the above summary suit be set aside and the Garnishee Notice No. 119 of 1990 be restored to file for hearing on merits.

(2.) BRIEFLY stated, the facts giving rise to the present Chamber Summons are as follows: the present suit was filed by the plaintiffs on 7th June, 1988 for recovery of a sum of Rs. 5,43,810/- due and payable by the defendants. Prior to the filing of the suit, in a suit filed by National Textile Mill against the defendants in Coimbatore Court, a decree was passed against the defendants herein on 12th March, 1986. On 20th May, 1988, attachment was levied in the said decree passed in favour of the National Textile Mill. As far as the present suit is concerned, the same was decreed against defendant Nos. 1 to 4 on 20th March, 1989. On 17th April, 1989, Sale Warrant was issued in consequence of the decree in the said Coimbatore Suit. On 26th July, 1989, the defendants made an application in Coimbatore Court to set aside the said decree passed by Coimbatore Court. In September, 1989, Execution Application was made in the present suit. On 27th September, 1989 attachment was levied in the present suit. In the Execution Application, in reply to Column `j thereof, the plaintiffs have mentioned as to what they wanted to be sold in execution. The Schedule annexed thereto, as far as it relates to immovable properties, mentions as follows : "goodwill and Tenancy rights of the defendants in their aforesaid concern and business premises. " notice under Order 21, Rule 52 of the Code of Civil Procedure (hereinafter referred to as `the Code) dated 27th September, 1989 also mentions - "the movables and immovable properties belonging to the defendants but in the custody of the Sheriff, having been already attached on 20th May, 1988 and being still under attachment in execution of the decree dated. . . . . . . . and transferred for execution to the Bombay City Civil Court at

(3.) THE defendants have, in support of their challenge to the Notice of attachment dated 27th September, 1989, while praying that the same be set aside and/or raised, submitted that the same was not served on the defendants and orders were passed thereon without notice. As far as the order dated 9th March, 1990 in Garnishee Notice No. 119 of 1990 is concerned, it was submitted that although the said order said the defendants were "served", in fact they were not served. On behalf of the plaintiffs, it was submitted that neither the Notice of Attachment or the Garnishee Notice are required to be served and although the said order dated 9th March, 1990 mentions the word "served", no such service was effected nor it is required to be served. Mr. Shah, the learned Counsel for the plaintiffs, took me through various provisions of the Code and satisfied me that no such notice to the defendants is required. In view thereof, I am not impressed by the submissions advanced on behalf of the defendants.