Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 3766/19 in EA 77/18
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 3766 OF 2019
IN
EXECUTION APPLICATION NO. 77 OF 2018
CNR NO. : MHCC01-010238-2019
Pradeep Vidhani S/o. Late Nanakram Vidhani …Plaintiff/
Decree Holder
Versus
1) Shri. Alok Sharma
2) Smt. Priti W/o. Alok Sharma ...Defendants/
Judgment Debtors
And
1) Siddhi Sanjay Shah
2) Dharmil Satish Rao … Applicants/
Obstructionists
Appearance:
Advocate Asif Vora for Plaintiff/Decree Holder.
Advocate Ms. Vrushali Kabare for Applicants/Obstructionists.
CORAM : SMT. S.S. NAGUR,
JUDGE, (C.R.NO.20)
DATE : 01/02/2021
ORDER
The Notice of Motion is filed by the applicant nos. 1 and 2 to
recall/cancel the Warrant of Attachment dated 10.09.2018 and Warrant
of Sale dated 22.01.2019 in respect of attachment of immovable
property i.e. flat bearing no. 18, Balaji, 3rd Floor, Shree Venkateshwara
Co-operative Housing Society Ltd., 195, Garodia Nagar, 90 feet road,
Opp. Garodia Palace, Near Pancholi Hospital, Ghatkopar (East),
Mumbai 400 077 admeasuring about 778 sq.ft. and movable property in
the said flat.
2. The Notice of Motion is supported by affidavit of applicant no. 1
Siddhi Sanjay Shah. He on oath stated that the property is purchased by
him from Mr. Murtuza Mohd. Matcheswala by registered Sale Deed
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dated 11.10.2018. Mr. Murtuza had purchased the said flat from
Smt. Veena Sharma (mother of defendant/ Judgment Debtor) by
registered Sale Deed dated 17.02.2018. In execution of decree, the said
flat is attached. The Judgment Debtor has no right, title and interest in
the flat. The applicants have purchased the flat and has paid
consideration of Rs.1,00,00,000/- (Rs.One Crore). The decreetal
amount is only Rs. 3,14,637/- (Rs. Three Lakh Fourteen Thousand Six
Hundred Thirty Seven). The applicants are not concerned with the
decreetal amount. Their property cannot be attached in execution of the
decree. Hence, prayed to allow the Notice of Motion.
3. The plaintiff/ Decree Holder filed reply through affidavit of
Mr. Pradeep Vidhani and denied the contents of Notice of Motion. The
Decree Holder stated that the plaintiff has attached the property by
following due procedure. It was the duty of the obstructionist before the
buying a flat, whose consideration value is more than a Crore, to take
search of the said flat. The applicant has purchased the flat on
11.10.2018 after attachment of the said flat. The flat was attached on
10.09.2018. The mother of defendant (Judgment Debtor) has signed
the inventory preferred by Bailiff. If she has already sold the flat, then
she should have informed the Court about it. The applicant has not
come with clean hands. The obstructionist in her affidavit stated that
she came to know about Warrant of Sale by her broker in the month of
June 2019 and obstructionist herein had filed their objection dated
15.04.2019 before the commissioner for taking Account, High Court
Bombay. Hence prayed to reject the Notice of Motion.
4. Heard advocate Ms. Vrushali Kabare for Applicants and Advocate
Asif Vora for Plaintiff/Decree Holder. The execution for recovery of
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money is filed against the decree passed by the Hon’ble Senior Civil
Judge, Jodhpur dated 01.11.2017. Execution Proceeding filed on
29.03.2018.
5. The applicant has relied on Sale Deed dated 17.02.2018 in
between Mrs.Veena Kailash Sharma and Mr.Murtuza Mohd.
Matcheswala whereby Mrs. Veena has sold the property to Murtuza for
consideration of Rs. 1,04,00,000/- (Rs.One Crore Four Lakhh).
Mr.Murtuza has sold the property to the applicant on 11.10.2018 for
consideration of Rs.1,04,00,000/- (Rs.One Crore Four Lakhs).
6. The Judgment Debtor No. 1 Mr. Alok is son of Mrs.Veena Sharma.
The decree is against Alok and Priti Sharma. The Judgment Debtor No.
2 is wife of Judgment Debtor No. 1. Mrs.Veena is not party to the suit
and decree is not binding on her. There is no document produced by
Decree Holder to show that the attached property belongs to Judgment
Debtor No. 1 & Judgment Debtor No. 2 and/or they have any right, title
and interest in the flat to be attached to recover the decreetal amount.
7. The applicants have purchased the flat for valuable consideration.
The Decree Holder not filed any document to show that the movable
property attached are owned by Judgment Debtors. Therefore, the
attachment of the flat and movable property therein without the proof
of its ownership of Judgment Debtors could not have been attached to
recover the decreetal amount.
8. Advocate Smt. Vrushali Kabare has relied on authority reported in :-
Venkateshwar Fiscal Services Private Limited Vs. Bagla &
Co. & Ors. : 2006 SCC OnLine Cal 564.
“the strict practise of proving the title in a
pro interesse
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suo application in the present case cannot be imposed on
the applicants. If from the pleadings filed in connection
with such application it is established that the award-
holders themselves have failed to make out a case from
bringing certain property within the purview of the
execution proceeding, then a Court of Law can release
such property without requiring the applicants to
establish their title first. The Court is such a case shall
take notice of the nature of claim of the award holders
(or decree holders) over the properties, and if such claim
falls short of the standard postulated in section 60 read
with Rule 30 of Order 21, then the properties ought to be
released from the execution proceedings”.
9. The applicants have filed on record the registered Sale Deed in
between Mrs.Veena Kailash Sharma and Mr.Murtuza Mohd.
Matcheswala and the Sale Deed in between the applicants and Mr.
Murtuza. The applicants have shown that they are the owners of the
flat. On the contrary, the Decree Holder in the reply has stated that the
mother of Judgment Debtor No. 1 did not resist the attachment or told
that the property does not belong to her. However, it is the Decree
Holder who has to bring on record that the property to be attached is of
Judgment Debtors and is absolute owner of the property for recovery of
decreetal amount. The Decree Holder did not file any document to
show that the flat and the movable property therein are owned by
Judgment Debtor. Hence, the attachment of the flat and the movable
property belonging to the applicants is to be recalled or cancelled.
Hence, pass the following order :-
ORDER
1. The Notice of Motion is allowed.
2. The Attachment Warrant dated 10.09.2018 and warrant
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of sale dated 22.01.2019 in respect of flat no. 18, Balaji,
3rd Floor, Shree Venkateshwara Co-operative Housing
Society Ltd., 195, Garodia Nagar, 90 feet road, Opp.
Garodia Palace, Near Pancholi Hospital, Ghatkopar
(East), Mumbai 400 077 admeasuring about 778 sq.ft.
and movable property lying in the said flat is cancelled.
3. Accordingly, Notice of Motion is disposed of.
(SMT. S.S.NAGUR )
Judge
Dt.: 01/02/2021 City Civil Court,
Gr. Mumbai
Dictated on : 01.02.2021
Transcribed on : 02.02.2021
Signed on : 02.02.2021
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
02.02.2021 5.00 p.m. Mrs. Prachi Y. Potdar
Stenographer Grade I
Name of the Judge HHJ Smt. S.S. Nagur
(CR No.20)
Date of Pronouncement of
Judgment/Order.
01.02.2021
Judgment/order signed by P.O on 02.02.2021
Judgment/order uploaded on 02.02.2021
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