1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. CHAMBER SUMMONS NO.234 OF 2009 IN EXECUTION APPLICATION NO.493 OF 2006 IN SUMMONS FOR JUDGMENT NO.135 OF 2006 IN SUMMARY SUIT NO.3092 OF 2005 Naresh T. Wadhel ..Plaintiff. Vs. Shanil Builders and others. ..Defendants. And Rashmi P. Parekh and another ..Applicants. .... Mr. Bharat Mehta for the Applicants. Mr. Y.M. Chaudhari with B.K. Karle for the Plaintiff. ... CORAM: DR. D.Y. CHANDRACHUD, J. 7th May, 2009. P.C. : 1. The Chamber Summons has been taken out under Order 21 Rule 58 of the Code of Civil Procedure, 1908 for raising and/or setting aside a warrant of attachment dated 13/17th November, 2007 and the warrant of sale issued in the 2 Execution Application. The premises in question comprise of a residential flat being Flat No.A-6 situated at Shanti Building No.2 at Kandivali (West). 2. On 28th June, 2005 the Second Defendant to the Summary Suit instituted under Order 37 entered into a registered agreement for the sale of the premises of the residential flat, in favour of one Krishnadas V. Seth. On 18th October, 2005 the suit came to be instituted against Shanil Builders, Raju Shah (the Second Defendant) and Nilesh Tanna (the Third Defendant) under Order 37. An ex parte decree was passed in the suit on 25th July, 2006. Thereupon a warrant of attachment was issued on 17th November, 2006. On 30th December, 2006 Krishnadas V. Seth, to whom the Second Defendant had sold the property on 28th June, 2005, much prior to the institution of the suit entered into a registered agreement for sale with the two Applicants to the Chamber Summons. In the meantime, on 7th March, 2007 a warrant of sale was issued followed by a notice of sale dated 22nd March, 2007 which was published in the newspapers on 10th April, 2007. 3. The ex parte decree was set aside on 27th April, 2007 on condition of the Third Defendant depositing an amount of Rs. 1 lac. On 9th May, 2007 the share 3 certificates were transferred from the name of Krishnadas V. Seth to the names of the Applicants. The Applicants filed their objections against the warrant of attachment / sale on 15th May, 2007. It would appear that though the decree was set aside on 27th April, 2007 proceedings continued before the Commissioner. The Applicants filed an affidavit in rejoinder in those proceedings on 26th September, 2007 drawing attention to the fact that the ex parte decree had been set aside on 27th April, 2007. On 3rd October, 2007 the Applicants gave notice to the Original Plaintiff and to the advocate for the Third Defendant calling upon them to furnish notice of 48 hours before moving this Court for amendment of the order dated 27th April, 2007. The order of the Court dated 27th April, 2007 setting aside the ex parte decree was modified on 29th October, 2007 by consent as a result of which the ex parte decree was set aside only as against the Third Defendant who had effected the deposit. The Commissioner issued a fresh summons on 7th December, 2007 and the warrant of attachment came to be renewed on the basis of the existence of the ex parte decree dated 25th July, 2006. The objections raised by the Applicants came to be rejected by the Commissioner on 17th January, 2009 on the ground that the Commissioner was not the appropriate forum to set aside the warrant of sale. 4 4. In support of the Chamber Summons two submissions have been urged. Firstly, it has been submitted that the Second Defendant had sold the property to the predecessor in title of the Applicants on 28th June, 2005 which was much prior to even the institution of the suit on 18th October, 2005. The Applicants have acquired the property on 30th December, 2006. Both the agreements dated 28th June, 2005 and 30th December, 2006 are registered documents. In the circumstances, it was submitted that both the attachment and the warrant of sale would have to be set aside inasmuch as the property does not vest in or belong to the Second Defendant. Secondly, it was urged that upon the ex parte decree being set aside on 27th April, 2007 the warrant of attachment is deemed to be withdrawn under Order 21 Rule 55. The modification of the order dated 27th April, 2007 on 29th October, 2007 would require a fresh warrant of attachment to be drawn up on the basis of the decree as modified. 5. In my view, having heard the learned counsel, the Applicants to the Chamber Summons are entitled to succeed. The Second Defendant to the suit had sold the property on 28th June, 2005 prior to the institution of the Suit on 18th October, 2005. The purchaser under the transaction dated 28th June, 2005 had perfected his title under a registered agreement prior to the institution of 5 the suit. The Second Defendant had been divested of his title before the suit had been instituted. In these circumstances, the attachment of the property which came to be levied on the basis that it belonged to the Second Defendant was manifestly erroneous. Though the acquisition by the Applicants is after the institution of the suit, under a registered agreement dated 30th December, 2006, that would not make any difference to the position because as already noted earlier, the Second Defendant had ceased to be the owner of the property under a registered agreement of 28th June, 2005. Section 64(2) of the Code of Civil Procedure clarifies that nothing in the Section shall apply to a private transfer or delivery of property attached, made in pursuance of a contract to such transfer or delivery entered into and registered before the attachment. There is also merit in the second submission which is to the effect that the consequence of the setting aside of the ex parte decree on 27th April, 2007 was that the attachment shall be deemed to be withdrawn, this being the clear provision made under Order 21 Rule 55 of the Code of Civil Procedure. Nearly six months thereafter, on 29th October, 2007, the earlier order dated 27th April, 2007 came to be clarified to the effect that the ex parte decree would stand set aside only as against the Third Defendant. Thereupon, it was necessary that a fresh warrant of attachment should be levied in pursuance of the decree as modified on 29th 6 October, 2007. This was evidently not done. 5. For both these reasons, the Chamber Summons would have to be made absolute. The Chamber Summons is accordingly made absolute in terms of prayer clause (a) *****