1 CHS 1308.10.sxw JPP IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.1308 OF 2010 IN EXECUTION APPLICATION NO. 409 OF 2010 IN SUMMARY SUIT NO. 2376 OF 2006 Mr. Ramdas Dadu Poojari. ... Plaintiff. V/s. Mr. Hiralal H. Kurdia. ... Defendant. And Shobanidevi P. Jatolia and Ors. ... Applicants. Mr. Mukesh J. Pabari for the Plaintiff. None for the Defendant. Mr. S.R. Bhagwat i/b. Sandeep Kumbhar for the Applicants. CORAM : R.Y. GANOO, J. DATED : 28th JANUARY 2011. P.C. :- The Plaintiff secured decree against the Defendant on 8th December 2008. The Plaintiff applied for execution of the said decree and prayed for attachment of the movable property lying in the premises viz. premises situate at Room No.29, more particularly set out in prayer clause (a) of the Chamber Summons (hereinafter referred to as the said premises). 2. This Chamber Summons is taken out by the Applicants for raising the said attachment. Applicant No.1 claims to be the owner of the said premises. Applicant No.2 claims that 2 CHS 1308.10.sxw Applicant No.1 has entrusted the premises to Applicant No.2 to run the business. Applicant No.2 is dealing in shoes and other foot wears. 3. Parties have completed the pleadings. I have heard learned Counsels on both sides. Both the Applicants have contended that the said premises came to be transferred by Defendant Mr. Hiralal in favour of Applicant No.1 by agreement to sell dated February 2006. The Applicants have relied upon the original agreement to sell. The Applicants have also relied upon other document to show that vacant and peaceful possession of the premises was transferred to Applicant No.1. The Applicants have produced documents to show that said premises were agreed to be purchased by Applicant No.1 and possession of it was delivered to Applicant No.1. 4. Learned Counsel appearing for the Applicants contended that the said premises were purchased by Applicant No.1 and Applicant No.2 was permitted to occupy the same and use it for business of foot wears. According to the Applicants, the articles lying in the said premises which have been attached are owned by Applicant No.2. Applicant No.2 has produced copies of the bills/delivery challans on the basis of which it is sought to be made out that goods were purchased by Applicant No.2 in due course of its business. According to the Applicants, the Plaintiff has no right over the goods for the purposes of attachment as the said goods are not at all owned 3 CHS 1308.10.sxw by the Defendant. Learned Counsel for the Applicants prayed for grant of the Chamber Summons. 5. Learned Counsel Mr. Pabari has submitted that even if the transaction as claimed by Plaintiff No.1 as regards purchase of the premises from the Defendant is accepted as it is, the said transaction is not inconformity with the provision of law and the said transaction is illegal. He submitted that the Defendant was also dealing in foot wear and that is how the Applicants have come forward to protect the interest of the Defendant by producing documents which according to the Plaintiff are false. 6. I have considered the rival submissions. The Applicants have produced documents by which it can be observed that Applicant No.1 has purchased the said premises. The Applicants have produced electricity bill showing the address of Suit premises. Even if the stand of the Plaintiff is accepted that the transfer of the said premises in favour of Applicant No.1 is illegal that cannot be a ground to attach the movables lying in the said premises. The record clearly shows that possession of the premises was handed over to Applicant No.1 on account of the said transfer. If that is so, the articles lying in the said premises cannot be that of the Defendant as the Defendant has already parted with possession of the said premises. The stand of Applicant No.2 that the articles lying there are owned by him is required to be accepted. 4 CHS 1308.10.sxw 7. For aforesaid reasons, the Applicants have made out the case for raising the warrant of attachment. Accordingly, following order is passed to dispose of the Chamber Summons :- (i) The Chamber Summons is made absolute in terms of prayer clause (a). There shall be no order as to costs. (ii) The Plaintiff to pay the poundage charges to Sheriff of Bombay within 10 days from today. 8. Learned Counsel for the Plaintiff states that the said premises that is the immovable property is attached in execution of the decree. I need not go into that aspect. This Chamber Summons was restricted to movables lying in the said premises. The Court has not expressed any views about the attachment of the said premises as an immovable property. (R.Y. GANOO, J.)