1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO. 779 OF 2006 IN EXECUTION APPLICATION NO.170 OF 2006 IN CITY CIVIL COURT SUIT NO.1377 OF 1988 Anand Mahal Co-op.Hsng.Soc.Ltd . ...Plaintiffs Vs. Mr. J.D'Cunha & Ors. ...Defendants None for Plaintiffs Mr.Ramesh Ramamurthy for Applicant/Defendants 2 & 3 CORAM: SMT.ROSHAN DALVI, J. DATED: 16 TH SEPTEMBER, 2008 P.C. 1. The above Suit was filed by a Co-operative Society against its members for Rs.9,969/- with further interest thereon. The Suit was filed on 8 th February, 1988. Under an interim order the Defendants agreed and undertook to pay Rs.11,955/- which was then due and payable. The order was passed on 30 th November, 1989. The Defendants paid the said amount under the Advocate's without prejudice letter dated 23 rd December, 1983. A receipt thereof is passed on 24 th December, 1989. 2 2. It appears that all the amounts due and payable were paid. In fact some excess amount was also paid. Nevertheless, the Suit proceeded for hearing. Evidence was led and a judgment has been delivered on 28 th January, 2005. Under that judgment the Plaintiff was to recover Rs.9,969/- with interest claimed by the Plaintiffs in the Suit. Credit was to be given for payment of Rs.11,955/- which was to be deducted from the decretal amount. Balance of arrears, if any, were to be paid. The decree is, therefore, not of a disputed amount calculated to be due and payable. 3. After the passing of the judgment the Plaintiff Society called upon the Defendants to pay Rs.1,43,417 /- with further interest thereon. This claim was made for the period after the Suit. This has nothing to do with the claim in the suit. The claim was made on 1st March, 2005. The Society bill of 1 st March, 2005 shows arrears as on 28 th February, 2005. 4. The claim in the Suit was as of the date of filing of the Suit. That was the claim as of 1988. The judgment in the Suit also specifically states that it is in respect of the bills of October, 1985 to October, 1988 only. The other bills produced in evidence were not a subject matter of the judgment and were not decided since that was not the claim 3 in the Suit. 5. The claim of Rs.1,43,417/- made is for fresh liabilities that arose after the filing of the Suit. Those liabilities cannot be paid as a decretal amount in the Suit. In fact the Advocate for the Defendants states that those liabilities are separately discharged. The Plaintiffs have sought to levy attachment on the movable as well as the immovable properties of the Defendants in their Society. 6. The culmination of the decretal amount under the judgment dated 28 th January, 2005 shows that the amounts shown in the Warrant of attachment are completely incorrect. Hence, the attachment levied on the Defendants property is required to be raised. 7. In fact the Defendants have prayed for refund of an excess amount of Rs.840/- from the Plaintiffs Society. The Defendants cannot pray for refund of excess amount in execution application. That may be adjusted from the future bills of the Society. Hence, the following order:- ORDER (i) The Chamber Summons is made absolute in 4 terms of prayer clause (a). (ii) The attachment on the movable and immovable properties of the Defendants is raised. (SMT. ROSHAN DALVI, J.)