Decided on December 04,1972



- (1.) AN important point of law arises in this appeal under the Maharashtra co-operative Societies Act, 1960. The appellant is the judgment-debtor in suit No. 8639 of 1969 in the city Civil Court at Bombay. the respondent is the plaintiff. On March 31, 1970, an ex parte money decree was passed in the said suit in the sum of Rs. 20. 041/- and interest against this judgment-debtor. The plaintiff-decree-holder took out a warrant of attachment of flat No. 9 in a building belonging to Paresh co-operative Housing Society Ltd. , a housing society registered under the Maharashtra co-operative societies Act, 1960 and situated in Plot No. 41-A, Podar Road, Santacruz (West), Bombay 54. On august 8, 1970 the flat was attached. The warrant of attachment was served on the judgment debtor while he was in jail at Rajkot. A copy thereof was pasted on the doors of the said flat. A warrant of sale was issued on October 16, 1970. A copy to it was served on the judgment-debtor when he was in jail, and a copy thereof was pasted on the doors of the flat.
(2.) IN the meanwhile the judgment-debtor's brother, one Hasmukh J. Joshi, took out a Chamber summons challenging the execution on the ground that the flat did not belong to the judgment-debtor and praying that the attachment should be raised. The Chamber Summons was made absolute. The Decree-holder appealed against the order. This court set aside the order and remanded the matter for re-hearing. The chamber Summons was dismissed finally on September 30, 1970. The judgment debtor came out of jail on October 21, 1970. He filed a suit No. 2011 of 1972 and took out a Notice of Motion dated February 28, 1972 to stay the execution proceeding. The sale in execution had been ordered to take place on March 1, 1972. The Notice of Motion was ultimately dismissed on March 14, 1972 with the following observations:- "the plaintiff (i. e. the Defendant herein) was no longer in prison after 21st October, 1970. He had remedies open to him. Firstly, he could have applied for setting aside the ex parte decree in view of the circumstances in which he was unable to appear and defend the suit. he could also have preferred an appeal against the ex parte Decree. He has not adopted any of these proceedings but has chosen to institute this suit after his brother and wife failed in their attempt to prevent the execution. " In the meanwhile the flat was auctioned at the scheduled time and was sold to one Bhupendra N. shah for Rs. 34,000/ -. His suit is pending in the city Civil court, The judgment-debtor filed a chamber Summons on March 28, 1972, without prejudice to the suit. In the said chamber summons he prayed for dismissal of the execution application made by the decree holder and for setting aside the warrant of attachment and proclamation of sale issued by the Court, in respect of the flat, on the ground that the flat, being a flat in a co-operative housing society was not liable to be attached and sold by court. The chamber Summons was opposed by the decree-holder on the ground of delay on the part of the judgment-debtor in moving the court and also on the ground that the flat was liable to be sold in execution of the money decree against the judgment-debtor.
(3.) THE learned Judge of the City Civil Court by his order dated April 24, 1972, dismissed the said chamber Summons on the ground that the basis of the chamber summons on the ground that the basis of the chamber summons was a judgment of Vimadalal, J. , in O. O. C. J. Suit No. 507 of 1964, D/- 11-9-1971 (bom) and the present case was distinguishable because the judgment-debtor did not refer to any bye-laws in the course of the affidavit in support of the Chamber Summons or at the hearing, analogous to the bye-laws, in the basis of which Vimadalal, J. , had decided that a member of a co-operative Housing society had only a right to occupy the flat and such right was incapable of being sold in a court auction. The decision of the learned judge of the city civil court, Bombay, is challenged in the above appeal.;

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