1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. CHAMBER SUMMONS NO.698 OF 2009 ]IN EXECUTION APPLICATION NO.300 OF 2007 IN SUMMARY SUIT NO.2881 OF 2003 Nemai Tarapado Nazra ..Plaintiff. Vs. Paritosh Bhupathi Nath and another ..Defendants. And Pritam Balkrishna Khanore ..Applicant. .... Mr. Amit Shroff for the Applicant. Mr. N.P. Shimpi for the Plaintiff. .... CORAM : DR. D.Y. CHANDRACHUD, J. 13th July, 2009. P.C. : 1. A decree was passed in a Summary Suit under order 37 on 20h March, 2006 in the amount of Rs.1,51,000/- together with interest at the rate of 9% per annum from the date of the institution of the suit. The subject matter of the Chamber Summons is a tenement admeasuring about 180 sq. ft. being room No.301 situated in a building known as 2 Nirdhar at Girgaon. The Maharashtra Housing and Area Development Authority is the owner of the premises. The wife of the Defendant Nutan Paritosh Nath was recognized by the Repair Board as a tenant under a communication dated 4th November, 2004. The Applicant obtained a transfer of the premises from the tenant on 18th October, 2007. The Applicant thereupon submitted an application to the Repair Board for regularization of the allotment in the name of the Applicant. The Repair Board issued a communication dated 25th October, 2007 to the Applicant recognizing the Applicant as a tenant as against the payment of an amount of Rs.27,000/-. The Applicant executed Form VI in favour of the Board. The rent receipts have been executed by the Mumbai Building Repairs and Reconstruction Board in favour of the Applicant. The rent receipts which are produced on record are for the period August 2007 to March 2008, April to September 2008 and October 2008 to March 2009. 2. An attachment was levied on the tenement in November 2007. Four submissions have been urged in support of the Chamber Summons; (i) The Applicant is a bona fide purchaser for value without notice; (ii) The 3 tenancy rights did not vest in the original Defendant to the suit, but in his wife; (iii) The nature of the occupation of the Applicant being in the nature of a tenancy, the premises could not have been attached under Section 60 of the Code of Civil Procedure, 1908 and (iv) The Plaintiff had, as a matter of fact, executed a receipt on 24th July, 2001 in favour of the Defendant accepting an amount of Rs.1.50 lacs in full and final payment of the outstandings. 3. Insofar as the alleged receipt dated 24th July, 2001 is concerned, it has been urged on behalf of the Plaintiff that the receipt is not genuine and that in any event, the Defendant to whom it is alleged to have been addressed did not produce it at any stage of the proceedings in the suit. As a matter of fact, the Defendants chose not to defend the suit at all. Hence, it was urged that the receipt cannot be relied upon by the Applicant in defence to the execution of the decree. 4. On 18th June, 2009 when the Chamber Summons came up for hearing the learned counsel had agreed that the Chamber Summons may 4 be heard and finally disposed of on the next date of hearing. Directions were issued that the reply, if any, shall be filed on or before 2nd July, 2009; that the rejoinder shall be filed before 9th July, 2009 and the Chamber Summons would be posted on Board for disposal on 13th July, 2009. No reply has been filed despite opportunity having been granted to the Plaintiff to file a reply to the Chamber Summons. In these circumstances, the request for adjournment cannot be acceded to. 5. Having heard the learned counsel, the Chamber Summons has to be allowed on the basis that the nature of the right which the Applicant holds is a tenancy in respect of the premises which belong to the Repair Board. The fact that the Applicant does not have a right of ownership is evident from the communication dated 25th October, 2007 issued by the Repair Board, which is an arm of MHADA. The Applicant has also relied upon the rent receipts issued by the Repair Board for the rent paid by the Applicant to the Board. The tenancy right of the Applicant could not have been attached under the provisions of Section 60 of the Code of Civil Procedure, 1908. Moreover, the transfer of the tenancy took place and 5 was completed at any rate on 25th October, 2007 when the Repair Board issued a communication to the Applicant recognizing the transfer of tenancy. The attachment came to be levied on the premises thereafter some time in November 2007. There is no requirement for the registration of an assignment of tenancy in premises which belong to MHADA and as such, the transfer was complete even before an attachment came to be levied by the decree holder. Finally, it would be necessary to observe that the tenancy stood not in the name of the Defendant, but in the name of his wife. For all these reasons, the Chamber Summons would have to be made absolute and is accordingly made absolute in terms of prayer clauses (b) and ( c ). *****