RAMESH HIMMATLAL SHAH Vs. HARSUKH JADHAVJI JOSHI

JUDGEMENT

(1.) This appeal in forma pauperis raises an important question of law:Is a flat in a tenant co-partnership housing society under the Maharashtra Co-operative Societies Act, 1960 liable to attachment and sale in execution of a decree against a member in whose favour or for whose benefit the same has been allotted by the society

(2.) We may briefly note the facts:The appellant is the decree-holder. He obtained a money decree against the respondent judgment-debtor and took a warrant of attachment of flat No. 9 of Paresh Co-operative Housing Society Limited at Santacruz, Bombay. This flat (described as ownership flat in common parlance) was attached on August 8, 1970 and a warrant of attachment was served on the judgment-debtor while he was in jail in Rajkot. In due course a sale proclamation was also issued in respect of the flat while the judgment-debtor was yet in jail. At this stage of the proceedings, the judgment-debtor's brother, Hasmukh J. Joshi (for brevity Hasmukh) took out a chamber summons challenging the execution on the ground that the flat did not belong to the judgment-debtor but belonged to him and to the judgment-debtor's wife and that the attachment should be raised. His chamber summon was made absolute but in appeal the order was set aside and the matter was remanded. The aforesaid chamber summons was, however, finally dismissed, on September 30, 1971. Hasmukh did not take any further action against the rejection of his claim to the property. After coming out of the jail, the judgment-debtor filed a suit some time in 1972 to set aside the decree. He, however, could not secure an order for injunction to prevent the execution of the decree and the suit is pending. The flat was offered for sale and was purchased in auction by one Bhupendra N. Shah for a sum of Rs. 24,000/-. The sale, however, is not yet confirmed. Subsequently a new plea was taken by the judgment-debtor. This time he filed a chamber summons on March 28, 1972, praying for the dismissal of the execution petition filed by the decree-holder and for setting aside the warrant of attachment and proclamation of sale on the ground that the flat being a flat in a cooperative housing society was not liable to attachment and sale. It was also stated that he had no saleable interest in the said property under Section 60.Civil Procedure Code, and therefore, it was not liable to attachment. The Judge, City Civil Court, Bombay, dismissed the chamber summons. The learned single Judge, Bombay High Court, however, in appeal allowed the claim and made the summons absolute by directing that the attachment and sale of the flat being illegal be set aside. The appellant preferred a Letters Patent Appeal before the Bombay High Court without success and the decision of the learned Single Judge was affirmed. Hence this appeal by special leave.

(3.) The flat in question is admittedly owned by the Paresh Co-operative Housing Society Limited (briefly the Society). Originally this flat stood in the name of one Ramesh Hariram Chande and his wife. It is not disputed before us and it has been so held by the Court in the claim case by the judgment-debtor's brother that the respondent purchased the flat benami in the name of his brother Hasmukh and his wife Shashikala, Although, therefore, the respondent is not a registered holder of the flat, it is clear that the flat is held by his brother and his wife on behalf of the respondent. This is to be noted as Section 60, Civil Procedure Code, reaches a benami holding. It may also be noted that the respondent is now fighting the case on the basis that the right to occupy the flat in question is his property which is not liable to attachment and sale. We should also note here that after the High Court invalidated the attachment and sale, the flat was purchas by one Suryakant N. Sangani (briefly Suryakant) having acquired the shares in the society from Hasmukh and Shashikala. It is said that on the joint application of Shashikala and Suryakant, the shares were transferred to the latter on or about May 15, 1974.