Case Note & Summary
The present chamber summons was taken out by Bhagwant Kaur Suri, proprietor of M/s. Beekay Enterprises, seeking to set aside the warrant of sale and release from attachment of Gala no. 404 situated in Hiren Light Industrial Premises Co-operative Society Ltd., Mahim, Bombay. The background is that a decree was passed in favor of Dinesh Shah, sole proprietor of M/s. Dinesh & Co., against Ravi Sharma, sole proprietor of M/s. U-Win Hosiery, for Rs. 9,05,171/-. The decree arose from arbitration proceedings (Arbitration No. 19 of 2000) and was sought to be executed in Execution Application No. 96 of 2002. The applicant claimed that the attached property belonged to her and not to the judgment debtor. In support, she relied on an agreement for sale dated 9.1.2002 executed between Mrs. Shashi Shetty as vendor and the applicant as purchaser for Rs. 2,30,000/-. The court noted that an ad-interim order dated 22.9.2003 had stayed the notice dated 5.2.2003 inviting objections to the attachment. The court considered the facts and held that the applicant had established her claim over the property, as the agreement for sale and possession predated the decree. Consequently, the court allowed the chamber summons, setting aside the attachment and releasing the property.
Headnote
A) Civil Procedure - Execution - Third Party Claim - Order 21 Rule 58, Section 47 Code of Civil Procedure, 1908 - The applicant claimed ownership of attached property based on an agreement for sale dated 9.1.2002 and possession prior to the decree. The court held that the applicant had a valid claim and the property did not belong to the judgment debtor, thus the attachment was set aside and the property released. (Paras 1-5)
Issue of Consideration
Whether the property attached in execution of a decree belongs to the judgment debtor or to a third party claimant who had an agreement for sale and possession prior to the decree.
Final Decision
The chamber summons is allowed. The warrant of sale in respect of the property is set aside and the property is released from attachment.
Law Points
- Third party claim in execution
- attachment of property
- agreement for sale
- possession before attachment
- Order 21 Rule 58 CPC
- Section 47 CPC
Case Details
2005 LawText (BOM) (02) 163
Chamber Summons No. 1263 of 2003 in Execution Application No. 96 of 2002 in Arbitration No. 19 of 2000
Mr. C.S. Kapadia with Ms. Y. Gada i/by M/s. Harakhchand & Co. for plaintiff; Mrs. A.R. Lambey with B.T. Palekar i/by Lambey & Co. for Applicants
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Nature of Litigation
Chamber summons in execution proceedings seeking to set aside warrant of sale and release property from attachment based on third party claim.
Remedy Sought
Applicant sought setting aside of warrant of sale and release of property from attachment.
Filing Reason
Applicant claimed ownership of attached property based on an agreement for sale dated 9.1.2002 and possession prior to the decree.
Previous Decisions
An ad-interim order dated 22.9.2003 stayed the notice dated 5.2.2003 inviting objections to attachment.
Issues
Whether the attached property belongs to the judgment debtor or the third party applicant.
Submissions/Arguments
Applicant relied on agreement for sale dated 9.1.2002 executed by Mrs. Shashi Shetty as vendor and applicant as purchaser for Rs. 2,30,000/- to claim ownership.
Ratio Decidendi
A third party claimant who has an agreement for sale and possession of the property prior to the decree has a valid claim that the property does not belong to the judgment debtor, and the attachment must be set aside.
Judgment Excerpts
The present chamber summons has been taken out for setting aside the warrant of sale in respect of the property bearing Gala no. 404...
The applicant before me is one Bhagwant Kaur Suri, Proprietor of M/s. Beekay Enterprises.
In support of the said contention, the applicant has relied upon an agreement for sale dated 9.1.2002 executed by and between Mrs. Shashi Shetty as vendor and the applicant as the purchaser for the sum of Rs. 2,30,000/-.
Procedural History
Arbitration proceedings (Arbitration No. 19 of 2000) resulted in an award which culminated in a decree. Execution Application No. 96 of 2002 was filed to execute the decree. Chamber Summons No. 1263 of 2003 was taken out by a third party claiming ownership of attached property. An ad-interim order dated 22.9.2003 stayed the notice inviting objections. The chamber summons was heard and disposed of on 14.2.2005.
Acts & Sections
- Code of Civil Procedure, 1908: Order 21 Rule 58, Section 47
