1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. CHAMBER SUMMONS NO.416 OF 2009 IN EXECUTION APPLICATION NO.31 OF 2005 IN SUMMARY SUIT NO.4457 OF 1999 M/s.Savnik Systems. ...Plaintiff. Versus Montreal Technologies Pvt.Ltd. ...Defendant. And Indu Kailash Ruia. ...Applicant. ....... Mr. D.B. Singh with Mr. R. Kherawala i/b. R.K. Associates for the Plaintiff. Mr.Chetan Kapadia with Mr.Amit Jajoo i/b. Paras Kuhad & Asso. for the Applicant. ...... CORAM : DR. D.Y. CHANDRACHUD, J. May 5, 2009. P.C.: The Chamber Summons has been taken out under the provisions of Order 21, Rule 58 of the Code of Civil Procedure, 1908 for setting aside a warrant of attachment taken out by the Plaintiff for the attachment of immovable property situated at 371, Cadel 2 Road, Prabhadevi, Mumbai. 2. On 1st April 2002, a decree was passed in a Summary Suit under Order 37 of the Code of Civil Procedure, 1908 for the recovery of an amount of Rs.1,86,450/- together with interest. The decretal dues as on the date of the warrant of attachment amounted to Rs.5,60,456.36. After the decree was passed, a notice was taken out under Order 21, Rule 22 of the Code of Civil Procedure, 1908. On 3rd March 2005, a notice came to be issued to the Judgment Debtor. On 31st March 2005 and 8th April 2005, the notice could not be served upon the Judgment Debtor by the Bailiff. Thereupon, a Chamber Order was taken out on 6th November 2005 for effecting substituted service. Substituted service was allowed on 6th December 2005 and the notice was published in two newspapers on 6th January 2006. The notice under Order 21 Rule 22 was made absolute. On 27th August 2008, a warrant of attachment was issued in respect of the immovable property in question. On 13th February 2009, a public notice was issued in the newspapers calling for objections to 3 the levy of attachment. The Chamber Summons for the lifting of the attachment was filed before the Court in the month of March 2009. 3. The decree in the present case has been passed against a Private Limited Company, namely, Montreal Technologies Pvt.Ltd. The Chamber Summons has been taken out by Smt.Indu Kailash Ruia. The contention of the applicant is that she had acquired absolute right, title and interest in respect of the immovable property pursuant to a registered Agreement dated 29th January 1971. Index II reflects the name of the applicant as the owner of the property. The Property Register has been duly mutated and the P.R. Card reflects the name of the applicant as the owner-assignee. The case of the applicant is that the premises belong to the applicant; however, a table space was allocated to the Company between 1998 and 2005. The Defendant has no right or interest in the premises and no compensation for the use of the premises was paid by the Company. 4 4. Three submissions have been urged by the Decree-holder in order to oppose the Chamber Summons. Firstly, it has been submitted that the application for raising the attachment is “designedly or unnecessarily delayed” within the meaning of proviso (b) to sub-rule (1) of Rule 58 of Order 21. The submission is that the applicant must be imputed with constructive notice of the passing of the decree against the Defendant and of the execution application upon substituted service being effected on 6th January 2006 by publication in the newspapers. Hence, it is urged that the Chamber Summons which was lodged in March 2009 is designedly or unnecessarily delayed and that the remedy of the applicant must lie under sub-rule (5) in the institution of a suit to establish the right which she claims. Secondly, it has been submitted that the Chamber Summons is barred by limitation since it has been instituted beyond a period of three years prescribed by Article 137 of the Schedule to the Limitation Act; the commencement of the limitation being traceable to the publication in the newspapers on 6th January 2006. Thirdly, it has been submitted that the Decree-holder 5 has attached whatever rights the Defendant may have in the premises be it in the nature of a tenancy or a licence. 5. An application under Order 21, Rule 58 has to be heard and disposed of as a suit. Sub-rule (2) of Rule 58 postulates that all questions including questions relating to the right, title or interest in the property attached arising between the parties to a proceeding or their representatives under the Rule and relevant to the adjudication of the claim or objection shall be determined by the Court dealing with the claim or objection and not by a separate suit. Once a claim or objection is adjudicated upon, the order made thereupon shall have the same force and be subject to the same conditions as if it were a decree. 6. The point that arises for consideration is as to whether the attachment that was levied is liable to be lifted on the ground that the immovable property in question belongs to the applicant and not to the Defendant. The documents produced on record are not 6 disputed during submissions. 7. In support of the Chamber Summons, the applicant has relied upon an indenture dated 29th January 1971 under which the applicant has acquired all the right, title and interest in respect of the immovable property situated at Survey No.60 (part), Cadel Road, Mahim, admeasuring 418 sq.mtrs. at and for consideration. The agreement has been stamped and registered. Index II reflects the name of the applicant as does the Property Register Card. The P.R. Card contains a reference to the Deed of Assignment dated 21st January 1971. On the basis of the documentary material which is placed on the record, which is not controverted, there can be no manner of doubt that the applicant has the right, title and interest in respect of the immovable property in question. 8. However, under proviso (b) to sub-rule (1) of Rule 58 even a valid claim or objection is liable to be rejected if it was designedly or unnecessarily delayed. In such an eventuality, the 7 remedy of the objector is to institute a substantive suit to establish the right which he claims in the property in dispute. There is a basic fallacy in the submission of the Decree-holder that the application is unnecessarily or designedly delayed. The foundation of the submission is that on 6th January 2006, after the Execution Application was filed before this Court, substituted service came to be effected by publication in the newspapers on 6th January 2006. The delay that is sought to be pressed in aid is the period of time that elapsed between the publication in the newspapers on 6th January 2006 and the institution of the Chamber Summons for lifting attachment in March 2009. The argument, however, misses the basic principle that under sub-rule (1) of Rule 58, the cause of action for preferring an objection or claim against attachment accrues after any property is attached in execution of a decree. It is after the attachment is levied that an objector is entitled to come forth and raise a claim or objection to the attachment. Indeed, prior to the levy of attachment, there is no occasion for an objection to be raised to the levy of an attachment. In the present case, the 8 attachment was levied on 27th August 2008 and a notice was published in the newspapers on 13th February 2009 calling upon third parties to submit claims or raise objections thereto. The question of delay therefore, would have to be assessed with reference to the levy of attachment on 27th August 2008. The objection to the attachment which was instituted in the form of the Chamber Summons in March 2009 cannot be regarded as being designedly or unnecessarily delayed within the meaning of proviso (b) to sub-rule (1) of Rule 58. Substituted service on 6th January 2006 of the execution application, which is prior to the levy of attachment cannot be factored in to determine the question of delay in filing an application for raising the attachment. The question of delay in filing an application for raising attachment must be construed with reference to the date on which attachment is levied. For the same reasons, the second submission which is founded on Article 137 of the Limitation Act must also fail. 9. The final submission that was urged on behalf of the 9 Decree-holder is that the Decree-holder was entitled to attach whatever rights that the Judgment-Debtor has in respect of the immovable property in question. Reliance was placed on an inspection extract from the Registrar of Companies which shows that in 2008, the Judgment-debtor had shown the registered office of the Company as being situated in the immovable property in question. Showing a particular place as a Registered Office does not establish either title or interest in the premises. On the other hand, the applicant has come before the Court with documentary material that would establish that the applicant had acquired interest in the premises in pursuance of a registered agreement dated 29th January 1971. The Decree-holder has failed to produce any material whatsoever to establish either a tenancy or a right of occupation as a licensee of the Judgment-debtor. In these circumstances, the objection which has been raised to the warrant of attachment in respect of the immovable property in question would have to be allowed and is accordingly allowed. 10 10. The Chamber Summons is made absolute in terms of prayer clause (a). ......