Monday 19 August 2013

Third person's property can not be attached in execution merely on the basis of the vague and general statement of DH

 I am inclined to observe that the
Defendants   residence   or     address   that   itself     cannot   be   the
foundation to attach movable or immovable property to execute an ex­
parte decree like this.   The Plaintiffs or a party  who wants to attach
movable as well as immovable  property must demonstrate on record
that  the  Judgment  debtor's    property   is  owned,  and/  or  possessed
and/ or he has right to dispose   of the property in question.       I am
inclined   to  observe   that   in  absence      of  any  such  averments,     the
issuance of warrant  of attachment of the property in such a fashion
is contrary  to the provisions of law and can cause great injustice and
hardship   to all  the concerned.     The third person's property       just

cannot be attached by the Plaintiff merely on the basis   of the vague
and general statement.  
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
CHAMBER SUMMONS NO.   1562   OF  2010
IN
EXECUTION APPLICATION  NO. 594  OF 2010
IN 
SUMMARY SUIT NO.   3206   OF   2008 

M/s. N.V. Balta Industries V/s. M/s. Tike International 

CORAM :    ANOOP  V.  MOHTA, J.
DATE    :     24th APRIL,   2013.
Citation; 2013 (4)ALL M R 204,2013(5) Mh. L.J. 128


1 The Plaintiffs on the basis   of the ex­parte decree   passed
against    the  Defendants  had  taken  out  the  execution  to  attach  the
movable and immovable  properties   of the Defendants.   Based upon
the averments made in the  execution application and the warrant  of
attachment,    the   immovable  properties    of  the  Applicant  have  been
attached  in August, 2010.   The Plaintiffs in support of the Affidavit
to   the   Execution   Application   has   not   provided     any     details   with
regard to the ownership and the title   of the properties  in question.
The basic averments  are  only  to attach the property   so described.

2 The property    attached  is situated at Plot No. 41, Kedia
House, J.B. Nagar, Andheri (E), which is stated to be in the name  of
Defendant No.2.  We are concerned only with the Applicant's property
who is owner of the property in question. 
3 The Applicant averred and   relied upon the documents to
show his ownership and title of the property :   occupation certificate
dated 4th  June, 1987;   the share certificate   of the year, 1997;   and
agreement   of sale and various other supporting documents to show
that he is in occupation / possession  of the property  since, 1977 as
the   owner.         The   Plaintiffs   in   reply,   just   denied   the   claim   of   the
Applicant and unable to place any contrary material  on the record to
support the execution  application so taken out for the attachment  of
the  property.      Even  otherwise,  a     third  person     like   the  Plaintiffs
cannot   challenge   the   title,   share   certificate   and   ownership
documents   in   such   a   fashion,   for   the   first   time  merely   by   raising
objections and even contentions, that the contesting Defendants  are
also residents of the same premises.  I am inclined to observe that the
Defendants   residence   or     address   that   itself     cannot   be   the
foundation to attach movable or immovable property to execute an ex­
parte decree like this.   The Plaintiffs or a party  who wants to attach
movable as well as immovable  property must demonstrate on record
that  the  Judgment  debtor's    property   is  owned,  and/  or  possessed
and/ or he has right to dispose   of the property in question.       I am
inclined   to  observe   that   in  absence      of  any  such  averments,     the
issuance of warrant  of attachment of the property in such a fashion
is contrary  to the provisions of law and can cause great injustice and
hardship   to all  the concerned.     The third person's property       just

cannot be attached by the Plaintiff merely on the basis   of the vague
and general statement.  
4 So   far   as   movable   properties     are   concerned,   the
attachment order as passed is  itself illegal  as the ownership itself  is
not  proved and/  or supported  by  the Plaintiffs  and on  the contrary
there   is   ample  material     on   record   to   show   that   the   properties   in
question  belongs to and owned by the Applicant even  before the date
of the decree.  It is relevant to note that even the suit as filed is of the
year 2008.   The documents of ownership and   title   including     the
share certificates   have been prior to the date of filing of the suit in
the name  of the Applicant and are still in the name of the Applicant.
Therefore,   whole action   so initiated by the Plaintiffs is contrary   to
law and not permissible.  
5  For the above reasons, there is no question  of  sustaining
the   order     of     attachment   of     immovable   and  movable   properties.
Resultantly,   the   Chamber   Simmons   is   allowed   in   terms   of   prayer
clauses (a), (b), (c).   
6   In  the   light  of  the  above,   it   is  a  clear    case  of  granting
costs in favour of the Applicant, as he has suffered  mentally as well
as physically due to   warrant of attachment of his properties   at the
instance  of the Plaintiffs in such a fashion.   Therefore, the Plaintiffs
shall pay a   cost of Rs. 15,000/­ to the Applicant within a period of
four   weeks   from   today.     I   am   not   deciding   the   effect     of   wrong
attachment   of   the   properties     of   the   applicant.     The   remedy     is
elsewhere. 

7 It  is made clear    that  the execution   so filed against the
Defendants     to   continue   in   accordance   with   the   law.       Liberty   is
granted   to   the   Plaintiffs   to   take   appropriate   application   with
supporting material, if any.    No costs. 
(ANOOP V. MOHTA, J)
…..

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