PRADYUT NATWARLAL SHAH Vs. SURYAKANT N SANGANI

JUDGEMENT

(1.) This is an appeal against an order of the Bombay City Civil Court: granting a temporary injunction in a suit filed under Order XXI, Rule 103 of the Civil P. C. 1908.

(2.) The material facts which have given rise to this Appeal are that the Second Respondent filed a suit in the Bombay City Civil Court against the Third Respondent, being Suit No. 8639 of 1969, to recover a sum of Rs. 20,041 with further interest on the principal sum of Rs. 17,060. It appears that in respect of some other dealings between these two Respondents the Second Respondent had filed a prosecution against the Third Respondent in which the Third Respondent was convicted and sentenced to imprisonment. The said suit No. 8639 of 1969 was decreed ex parte on March 31, 1970. The Second Respondent thereafter took out execution Proceedings, and in the said execution proceedings a warrant of attachment was issued under Order XXI, Rule 54 of the Civil P. C. attaching the right, title and interest of the Third Respondent in a flat, namely, Flat No. 9, on the first floor of a building situate at 41-A, Podar Road, Santa Cruz (West), Bombay-54, belonging to Paresh Cooperative Housing Society Limited. The right, title and interest of the Third Respondent in the said flat were attached on Aug. 8, 1970. If appears that the shares in the said co-operative housing society with respect to the said flat belonged to one Ratilal Chande and his wife who sold them to the Third Respondent. The said shares were got transferred by the Third Respondent not in his own name but in the name of his wife Shashikala and his brother Hasmukh, who applied to the said society for transfer of the said shares to their names, which application was granted. Thus, in the record of the said society the registered holders of the said shares were the Third Respondent's wife and his brother Hasmukh. After the said flat was attached, the Third Respondent's brother Hasmukh took out a chamber summons on Sept. 11, 1970 to raise the said attachment on the ground that the said flat was in the sole and absolute ownership of himself and the Third Respondent's wife Shashikala. Shashikala herself did not adopt any proceedings to get the said attachment raised. The said chamber summons was made absolute on Nov. 27, 1970, but in a civil revision application filed in this Court against the said order, namely, Civil Revision Application No. 796 of 1970, this Court set aside the said order and remanded the said chamber summons to the City Civil Court to dispose of this matter in the light of the observations made in the said judgment. On remand the said chamber summons was Dismissed on Sept. 30, 1971 by the City Civil Court on the ground that Shashikala and Hasmukh were not the owners of the said flat and had no right, title or interest therein. No steps were taken by Hasmukh to challenge the said order by filing a suit under Order XXI, Rule 103 of the Civil P. C., and accordingly the said order became final.

(3.) In pursuance of the attachment levied on the said flat, the said flat was put up for sale, and on Nov. 25, 1971 the proclamation of sale was settled in the 'presence of the Third Respondent, and the sale by auction was fixed on March 1, 1972. On Feb. 14, 1972 the said society was served with a notice from the Court with respect to the holding of the said auction sale. On Feb. 28, 1972 the Third Respondent filed a suit in the said Court, namely, Suit No. 2011 of 1972, to set aside the said ex parte decree and took out a notice of motion to stay the said auction sale. On March 1, 1972 the said notice of motion was dismissed and the said flat was sold by auction. At this auction sale the secretary of the said society as also the Third Respondent were present. The highest bid, namely, of Rs. 24,000, was given by one Bhupendra, the brother of the Appellant, who gave the said bid on behalf of the Appellant. The Appellant duly deposited the full amount of his bid with the Sheriff of Bombay, and on March 15, 1972 a certificate to this effect was issued by the Sheriff in favour of the Appellant. On March 28, 1972 the Third Respondent took out a chamber summons to set aside the warrant of attachment and the proclamation of sale and for dismissal of the execution application filed by the Second Respondent. In the said chamber summons the Third Respondent contended that the said flat, being a flat in a co-operative housing society, was not liable to be attached and sold in execution of the Court's decree. That chamber summons was dismissed by the City Civil Court on April 24, 1972. In an appeal filed against the said order of dismissal Vaidya, J., upheld the contention of the Third Respondent and held that a flat in a co-operative housing society was not a saleable property and was, therefore, not an attachable property under Section 60 of the Civil P. C., 1908. Vaidya, J., allowed the said chamber summons in part and directed that the attachment and sale of the said flat be set aside. The judgment of Vaidya, J., is reported as Harsukh Jadhavji Joshi v. Ramesh Himatlal Shah,. Against this order of Vaidya, J., the Second Respondent filed a Letters Patent Appeal. In the said Letters Patent Appeal a Division Bench of this High Court consisting of Bhole and Mukhi, JJ., held that an allottee of a flat in a co-operative housing society registered under the Maharashtra Co-operative Societies Act, 1960, had no saleable interest "in the flat which was capable of being attached and sold in execution of a decree of a Court. The judgment of the Division Bench is reported as "Ramesh Himmatlal Shah v. Harsukh Jadhavji Joshi, (1974) 76 Bom LR 375. In the result, the said Letters Patent Appeal was dismissed on November 2, 1973.