Order 1

Order Details: Chamber summons
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IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO.733 OF 2018
IN
EXE.APPLICATION NO. 513 OF 2017
IN
SUMMARY SUIT NO. 3815 OF 2013
Smt.Pushpa Ramesh Tagare, )...Applicant.
Mr.Monish Laxmikamnt Thakoor )...Plaintiff.
V/s.
Mr.Sarang Ramesh Tagare )...Defendant.
CORAM : His Honour Judge
SHRI. S.J.Biyani(C.R. NO.28)
DATE : 04/05/2018.
Ld advocate Mr.Prabhu for the applicant.
Ld. advocate Mr.Devendra S.Rajapurkar for the plaintiff.
ORAL ORDER
Perused application and say. Heard both the sides.
2. The following points arose for my consideration and I
have recorded my findings for the reasons stated thereunder.
Sr.Nos. POINTS FINDINGS
1.
Whether applicant made out a prima
facie case in her favour?
In the affirmative
2. Whether applicant made out that balance
of convenience lies in her favour ?
In the affirmative
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3. Whether applicant made out that ad
interim injunction if not granted,
applicant will suffer from irreparable
loss?
In the affirmative
4. What order? As per final order
3. The applicant by present chamber summons sought ad
interim relief for canceling and setting aside the attachment of property
bearing Flat no. 6, 3rd floor, Anjali Apartment, Lt. Dilip Gupe Road,
Mahim Mumbai 4000016 ( for the sake of brevity hereinafter referred
to as “said flat”) and for staying the execution application in respect
of attachment property mentioned above.
4. It is the case of applicant that said flat owned by her and
she is the member of society namely Amit Premises Cooperative
Society Ltd. The said flat was purchased by her late husband Ramesh
Gajanan Tagare vide an agreement dated 03/03/1975 and since then
he was a member of society. Ramesh Tagare expired on 10/3/2010 and
as per his wish the said flat was transferred in the name of applicant
and she become the owner of the said flat and member of the Society.
Applicant was not party to the Summary Suit No. 3815/13. The Court
wrongfully issued precept against the said flat which is not in the name
of defendant/Judgment debtor. The Judgment Debtor was not served
any notice of Execution Proceedings. Therefore, present chamber
summons is filed and claimed ad interim relief.
5. The Decree Holder filed his say and resisted the
contention of applicant contending that present chamber summons is
nothing but a managed proceeding and present chamber summons is
only misconceived and malafide and is not maintainable. The
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Defendant/Judgment Debtor is the present Secretary of Building Anjali
Apartment and the relation between defendant/ Judgment Debtor and
applicant are as Son and Mother. The applicant is assisting defendant to
flout the orders of this Court by suppressing facts and to rob the
plaintiff from enjoying the fruits of the decree in his favour. The Decree
holder denied the contentions of applicant as being the exclusive
owner of the said flat. After the death of Ramesh Tagare, the provisions
of Hindu Succession Act, 1956 will apply and the applicant has to
prove right, title and interest in respect of the said flat. The applicant
has not filed any documentary evidence showing about the wish of
deceased Ramesh Tagare for transferring the said Flat in favour of
applicant. Mr. Ramesh Tagare expired on 10/3/2010 and present
transfer is taken place in the year 2016 with itself speaks an attempt to
rob the plaintiff from enjoying the fruits of decree. The Share
Certificate is not the document of ownership. Moreover, Share
Certificate does not discloses that same pertains to the said flat. The
Share Certificate is not signed by the Chairman and Secretary of the
Society for the reasons best known to the applicant. The Decree
Holder denied about the contention of applicant about issuing wrong
attachment warrant for the said flat. The present application does not
contain verification clause. Lastly, prayed for rejection of application.
6. On perusal of record, it shows that original summary suit
no. 3815/2013 was filed by Decree Holder against Mr.Sarang Ramesh
Tagare showing said Flat as the address of residence. It is not
disputed that the said flat was originally in the name of Ramesh
Tagare. Relationship between the applicant and Judgment Debtor is
also not disputed. If this aspect is considered, it shows that after the
death of Ramesh Tagare, his legal heirs are having right, title and
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interest over the said flat. The applicant though contended about the
owner of said flat but fail to file any documentary evidence and Share
Certificate itself is not the document of ownership of the said Flat. The
advocate for applicant was argued that there is no any compliance of
Order XXI Rule 54 (2) of C.P.C., as there was no any notice to
Judgment Debtor and no any procedure was followed in respect of
attachment of the said Flat as provided under Order XXI Rule 54 of
C.P.C. The Ld. advocate for applicant has relied on the following
citations,
1) Chandrakant Ganpat Sovitkar Vs. State of Maharashtra,
reported in 2000(4)Mh.L.J. 581.
2)Satyanarain Bajoria and another V/s. Ramnarain
Tibrewal and anr., reported in AIR 1994 SUPREME COURT
1583
7. The Ld. Council for Decree Holder argued that procedure
as prescribed by the law is followed while effecting the attachment of
the said Flat. Further the Share Certificate is not the document of
ownership and filed the copy of Order of Hon'ble Justice M.S.Sonak
dtd. 18/01/2016 in Writ Petition(Stamp)no. 17857/2015. On perusal
of record, it shows that Bailiff have filed report of the warrant of
attachment under Order XXI Rule 54 of C.P.C. and it was executed
upon Mrs. Tagare for the said Flat by following due procedure. It also
shows that the decree was passed on 17/10/15 and within a period of
2 years execution application was filed. While considering the
objection, it shows that the said Flat was originally in the name of
deceased Ramesh Tagare and after his death his legal heirs are having
right but in present application applicant has not filed any Heirship
Certificate, so as to determine the share of applicant in the said Flat.
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8. Considering the share of applicant in the said Flat and
nature of properly attached, it shows that property is not partiable.
While considering the submissions, at this stage, in absence of any
evidence and considering the relationship between the parties and
attached flat previously in the name of Ramesh Tagare and in absence
of any heirship Certificate, I found that all these questions alongwith
the question of right, title and interest of applicant in the said Flat
cannot be decided at this stage in absence of evidence of parties.
Therefore, at this stage, I found that applicant is having prima facie
case for the said flat to the extent of staying the execution proceedings
till disposal of chamber summons which also carries the balance of
convenience. If the ad interim application is not allowed, it will
frustrate the purpose of filing application and applicant will be
deprived from exercising her right. Therefore, I hold that ad interim
application for the said Flat is to be allowed to the extent of staying the
execution proceedings of the said flat till the disposal of the above
chamber summons. Hence, I answer in affirmative for the above points.
In the result, I pass following order:
ORDER
1. Ad Interim Injunction is granted and further Execution
Proceedings of the said Flat are stayed till the disposal of Chamber
Summons No. 733/2018.
2. Costs in cause.
(S.J.Biyani )
Date:04/5/2018. City Civil & Sessions Court,
Gr.Mumbai.
Dictated on : 04/5/2018
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Transcribed on : 05/05/2018
Signed on : 05/05/2018
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE: NAME OF STENOGRAPHER
05/05/2018 Mrs. V.V.Malgaonkar
TIME:5.30p.m.
Name of the Judge ( With Court
room no.) Shri S.J.Biyani
(Court Room No.28)
Date of Pronouncement of
JUDGEMENT/ORDER
04/05/2018
JUDGMENT/ORDER signed by
P.O. on
05/05/2018
JUDGEMENT/ORDER uploaded on 05/05/2018
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