1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO. 402 OF 2009 IN CHAMBER SUMMONS NO.2085 OF 2007 IN NOTICE NO. 1493 OF 2005 IN EXECUTION APPLICATION NO.356 OF 2005 IN SUMMARY SUIT NO. 2563 OF 1992 The Mineral And Metals Trading Corporation of India Ltd. ...Plaintiffs Vs. M/s. Manish Diamonds And Ors. ...Defendants WITH CHAMBER SUMMONS NO.1010 OF 2009 IN CHAMBER SUMMONS NO. 2085 OF 2007 IN NOTICE NO. 1494 OF 2005 IN EXECUTION APPLICATION NO.356 OF 2005 IN SUMMARY SUIT NO.2563 OF 1992 The Mineral And Metals Trading Corporation of India Ltd. ...Plaintiffs Vs. M/s. Manish Diamonds And Ors. ...Defendants 2 WITH NOTICE OF MOTION NO. 1016 OF 2009 IN CHAMBER SUMMOS NO. 2085 OF 2007 IN NOTICE NO. 1493 OF 2005 IN EXECUTION APPLICATION NO.356 OF 2005 IN SUMMARY SUIT NO. 2563 OF 1992 The Mineral And Metals Trading Corporation of India Ltd. ...Plaintiffs Vs. M/s. Manish Diamonds And Ors. ...Defendants WITH CHAMBER SUMMONS NO. 1510 OF 2009 IN EXECUTION APPLICATION NO.356 OF 2005 IN SUMMARY SUIT NO.2563 OF 1992 The Mineral And Metals Trading Corporation of India Ltd. ...Plaintiffs Vs. M/s. Manish Diamonds And Ors. ...Defendants And Dineshchandra Pandya ...Applicant 3 ----- Mr.S.P. Munghate for Plaintiffs Ms. Swati Agarwal i/b. Khaitan & Jayakar for Defendants Mr. Karl Shroff a/w. Mr. Jayesh Desai i/b. Singhi & Co. for Applicant ----- CORAM: V.M. KANADE J. DATED: 9TH FEBRUARY, 2010 P.C. 1. Heard the learned Counsel appearing on behalf of the Plaintiffs and the learned Counsel for the Third Party, who has taken out this Chamber Summons for raising attachment of the flat situated in Flonika, 4 th Floor, 59, Walkeshwar, Mumbai  400 006 and for seeking leave of this Court to intervene in execution application. 2. Brief facts of the case are that the Plaintiffs had filed the Summary Suit against the Defendant and others and in the said suit, Summons for Judgment was taken out and an order was passed directing the Defendants to deposit certain amount and on depositing the said amount, conditional leave to defend was granted to the Defendants. However, the Defendants had failed to deposit the said amount and, as a result, the decree was passed by this Court on failure of the Defendants to deposit the said amount 4 on 21.1.2002. The Execution Application was taken out by the Plaintiffs in the year 2005. Chamber Summons No. 2805 of 2007 was taken out by the Plaintiffs and by order dated 24.1.2008, the Chamber Summons was allowed. Thereafter, the order of attachment was passed by Smt.Justice R.S. Dalvi on 18.7.2008 and the attachment warrant was issued pursuant to the said order on 5.1.2001 and the said property was, thereafter, attached. 3. The learned Counsel appearing on behalf of the third party has submitted that the said property viz. flat situated in Flonika on 4th Floor, 59, Walkeshwar Road, Mumbai -400 006 does not belong to the Defendants and as such, the said property could not have been attached pursuant to the order passed by this Court for attachment of the Defendants' estate. He submitted that the said flat in Flonika initially was purchased on 29.12.1968 by Ratanchand L. Parikh with Mr. Ashish Parikh and Mr. Samir Parikh from M/s. Phiroz N. Darage and Associates. It is an admitted position that these persons are not the partners of the partnership firm - Defendant No.1 in the suit viz. M/s. Manish Diamonds. The said Ratanchand L. Parikh had bequeathed these properties to his grandsons by the last Will dated 28.7.1987. It was also specifically mentioned in the Will that 5 the Defendant No.2 only had life time right to occupy the said flat. Laxmi Parikh died on 9.1.1990 and the property was bequeathed to his grandsons viz. Ashish Parikh, Samir Parikh and Sagar Parikh. An application was filed for Probate of the said Will which was granted by this Court on 19.7.1993. In the meantime, the suit was filed by the Plaintiffs for money decree against the said firm M/s. Manish Diamonds and finally a decree was passed in the said suit in favour of the Plaintiffs. 4. The learned Counsel appearing on behalf of the Third Party has invited my attention to the Probate which was granted by this Court. He further invited my attention to the share certificate which shows that initially the flat stood in the name of Ratanchand L. Parikh and after the probate was granted it was transferred in favour of his grandson Ashish. He also submitted that in the Chamber Summons which was heard by Justice Vazifdar, the Defendants had pointed out that flat in Flonika did not belong to the Defendants. He submitted that this flat was transferred to one Suresh Ratan Zaveri vide registered sale deed dated 27.3.2008 for a consideration of Rs.6,50,00,000/- and, accordingly, name of Suresh Ratan Zaveri was entered into the said share certificate and finally the said Zaveri sold the property on 26.2.2007 to the 6 present third Party Dineshchandra Pandya whose name also has been now appeared in the share certificate as the member of the society and the flat now stands transferred in his name. He, therefore, submitted that the Plaintiffs did not have any right to attach the said flat which did not belong to the Defendants and, therefore, order of attachment is liable to be set aside in respect of the said flat. 5. The learned Counsel for the Plaintiffs submitted that the Defendants at no point of time informed the Court that this flat did not belong to the Defendants. He submitted that when the Court Receiver went to take inspection of the premises, at that time, this flat was not disclosed to the Court Receiver. He invited my attention to the Court Receiver's report. He also submitted that in the Probate Petition, it was clearly mentioned that one of the partners of the firm was the executor of the Will. He submitted that being the executor of the Will, he had interest in the said property and, therefore, the Court had correctly passed an order of attachment. He also submitted that during the pendency of the suit, the property was sold on two occasions, one by the grandson of Ratanchand and thereafter, by Mr. Sureshbhai Ratan Zaveri. He, therefore, urged that there was no merit in the submissions made by the 7 learned Counsel for the Third Party in the Chamber Summons. 6. It is not possible to accept the submissions made by the learned Counsel appearing on behalf of the Plaintiffs. It is a well settled position in law that the executor of the Will does not have any title in the property of which he is appointed as an Executor and, therefore submission made by the Learned Counsel for the Plaintiffs that one of the partners of the firm being an executor had interest in the property cannot be accepted. The documents which are now produced and are brought on record by the Third Party clearly indicate that the Defendants did not have any interest in the flat situated in Flonika on 4th Floor, 59, Walkeshwar Road, Mumbai -400 006 and, therefore, the said property could not have been attached. The share certificate which is produced by the third party clearly indicates that the property initially was in the name of Ratanchand, who had admittedly not a partner in the partnership firm of the Defendant No.1. No other evidence is produced on record to indicate that this property was purchased by the Ratanchand out of the income of the Defendant No. 1. The property was duly transfered after a probate was obtained from this Court and it was transferred to the grandson of the original owner and who has 8 exchanged the hands on two occasions. Therefore, there is much substance in the submissions made by the learned Counsel appearing on behalf of the Third Party. Material which is produced on record, therefore, clearly indicates that the property does not belong to the Defendants. On the other hand, no material is produced by the Plaintiffs to show that the property belongs to the Defendants. The order of attachment dated 18th July, 2007 in respect of the flat situated in Flonika on 4th Floor, 59, Walkeshwar Road, Mumbai - 400 006 is set aside. In view of this order, in my view, the third party is entitled to intervene in the execution application No. 356 of 2005. Chamber Summons is, accordingly, disposed of in the aforesaid terms. (V.M. KANADE J.)