:1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION CHAMBER CHAMBER CHAMBER SUMMONS NO. 1516 OF 2008 SUMMONS NO. 1516 OF 2008 SUMMONS NO. 1516 OF 2008 IN IN IN EXECUTION EXECUTION EXECUTION APPLICATION NO. 71 OF 2004 APPLICATION NO. 71 OF 2004 APPLICATION NO. 71 OF 2004 IN IN IN AMRITSAR AMRITSAR AMRITSAR SUIT NO. 580 OF 1994 SUIT NO. 580 OF 1994 SUIT NO. 580 OF 1994 Mr. Satyapal Dilwari. ... Plaintiff. V/s. M/s. Stallion and Ors. ... Defendants. And Ms. Icchalaxmi S. Mooni. ... Applicant. Ms. Sudha Joshi for the Plaintiff. Mr. D.A. Bharot for Defendants 1 and 2. Ms. P.N. G. Shukla for the Applicant. ..... CORAM CORAM CORAM : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. 02ND 02ND 02ND MARCH 2009. MARCH 2009. MARCH 2009. P.C. P.C. P.C. : : : . This is a Chamber Summons by the Applicant for raising attachment on a Flat more particularly described in prayer clause (a) of the Chamber Summons. 2. The joint Warrant of Attachment as amended attaches this property alongwith the furnitures and fixtures so also other immovables lying therein. 3. In the affidavit in support of this Chamber Summons which was moved on 10th October 2008, the Applicant states that she is a senior citizen aged 84 years. She is the wife of one Shantilal N. Mooni (since deceased). From the marriage the couple had three sons. The Defendant Nos. 2 and 3 are the sons whereas Defendant No.1 is a Partnership Firm. :2: 4. It is stated that the immovable property was purchased by the deceased by an Agreement for Sale dated 13th January 1980. The deceased became member of the Society in respect of the flat and was allotted the share certificate. The deceased expired on 7th July 1997. Thereafter, on 14th March 2005, Defendant Nos. 2 and 3 purported to transfer their right in the said flat and executed an affidavit-cum-declaration so also Indemnity Bond in favour of the Applicant. 5. The Society maintenance bills are being paid by the Applicant. 6. It is stated that the ex-parte decree was passed on 21st March 2002 by the Civil Judge, Senior Division, Amritsar and on execution of the said decree, this flat is attached. 7. The Applicant has stated that on the death of the deceased, she has a right, title and interest in the property. She has inherited this and she is entitled to a share alongwith Defendant Nos. 2 and 3. In any event all three sons have relinquished their right, title and interest and that is how, the flat cannot be attached. 8. In reply to this Chamber Summons, the Decree Holder has stated that the Decree Holder is a partnership firm and admittedly, Defendant Nos. 2 and 3 are partners of :3: the firm. They were the Defendants in Suit No.580 of 1994. That decree has not been executed till date on account of the fact that these Defendants have put up the mother to obstruct the execution thereof. However, the Decree Holder does not dispute that if after the death of the deceased, the property has been inherited by the Applicant alongwith her sons, then, the attachment may continue subject to her share in the property and later on it may be disposed off subject to the same. 9. When this matter was placed before me earlier, Defendant No.2 appeared in person and sought time. He stated that he will consider arranging to deposit certain amounts in Court without prejudice to the rights and contentions of the parties. This statement was made when it was informed to the Judgment Debtors that their mother is aged 84 years. At this stage of her life, she should not be deprived of a immovable property. More so, when she is in no way responsible for the affairs of the firm or for passing off decree against the firm and its partners, the son sought time and stated that another son was Abroad. The matter will be discussed and appropriate deposits will be made. However, no steps were taken by the sons. 10. Now, the rejoinder affidavit is filed by the Applicant - Intervener and her whole attempt is to see that she is not deprived of the property. :4: 11. She has stated that there are two Civil Suits which are filed in this Court and which are pending. The parties to the same are identical to the present Execution Proceedings. The Suit is filed against the Plaintiff - Decree Holder in the present Suit. 12. It is apparent to me now that the sons are agitating the claim on merits and seeking to challenge the decree which is not permissible in law. In Execution Proceedings. Once they admit their liability and a decree is passed, all that can be done by them is raised to resist execution but on permissible grounds. Surely, pendency of other Suits or that the decree could not have been passed ex-parte are grounds which cannot be raised in these proceedings. Therefore, the request of the Applicant to raise the attachment on these grounds cannot be granted. Admittedly, she has a share alongwith her sons. 13. In these circumstances, the Chamber Summons is rejected but it is clarified that the attachment will continue subject to the share of the Applicant in the attached properties and if at all the sale takes place, the same would be subject to her share therein. With these clarifications, the Chamber Summons is disposed off. No costs. (S.C. (S.C. (S.C. DHARMADHIKARI,J.) DHARMADHIKARI,J.) DHARMADHIKARI,J.)