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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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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