IN THE HIGH COURT OF JUDICATURE IN THE HIGH COURT OF JUDICATURE IN THE HIGH COURT OF JUDICATURE AT BOMBAY AT BOMBAY AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.97 OF 2006 CHAMBER SUMMONS NO.97 OF 2006 CHAMBER SUMMONS NO.97 OF 2006 IN IN IN EXECUTION APPLICATION NO.41 OF 2006 EXECUTION APPLICATION NO.41 OF 2006 EXECUTION APPLICATION NO.41 OF 2006 IN IN IN SUMMARY SUIT NO.1094 OF 2005 SUMMARY SUIT NO.1094 OF 2005 SUMMARY SUIT NO.1094 OF 2005 Jayesh Jayantilal & Co. ...Plaintiffs Jayesh Jayantilal & Co. ...Plaintiffs Jayesh Jayantilal & Co. ...Plaintiffs Vs. Vs. Vs. Khushal Hansraj Gala ...Defendant Khushal Hansraj Gala ...Defendant Khushal Hansraj Gala ...Defendant And Jigar Khushal Gala & Anr. ...Respondents Jigar Khushal Gala & Anr. ...Respondents Jigar Khushal Gala & Anr. ...Respondents Mr.P.N.Gunwani i/b.Sanat Kumar N. Shah for Plaintiffs Mr.P.N.Gunwani i/b.Sanat Kumar N. Shah for Plaintiffs Mr.P.N.Gunwani i/b.Sanat Kumar N. Shah for Plaintiffs Mr.P.V.Bhagat i/b.M/s.Vasant & Co. for Defendant Mr.P.V.Bhagat i/b.M/s.Vasant & Co. for Defendant Mr.P.V.Bhagat i/b.M/s.Vasant & Co. for Defendant Mr.P.J.Pandit for Respondents 1 & 2 Mr.P.J.Pandit for Respondents 1 & 2 Mr.P.J.Pandit for Respondents 1 & 2 CORAM: SMT. ROSHAN DALVI, J. CORAM: SMT. ROSHAN DALVI, J. CORAM: SMT. ROSHAN DALVI, J. DATED: 10TH JANUARY, 2007 DATED: 10TH JANUARY, 2007 DATED: 10TH JANUARY, 2007 P.C. P.C. P.C. 1. This Chamber Summons is for execution of the decree 1. This Chamber Summons is for execution of the decree 1. This Chamber Summons is for execution of the decree in the above Suit by appointment of a Court Receiver. The in the above Suit by appointment of a Court Receiver. The in the above Suit by appointment of a Court Receiver. The Plaintiff requires the Court Receiver to sell the flat of Plaintiff requires the Court Receiver to sell the flat of Plaintiff requires the Court Receiver to sell the flat of the Defendant being Flat No.12, Kailash Cottage Co-op. the Defendant being Flat No.12, Kailash Cottage Co-op. the Defendant being Flat No.12, Kailash Cottage Co-op. Hsng. Society, Opposite Sion Railway Station, Mumbai-400 Hsng. Society, Opposite Sion Railway Station, Mumbai-400 Hsng. Society, Opposite Sion Railway Station, Mumbai-400 022 (the flat). The Respondents are the son and the wife of 022 (the flat). The Respondents are the son and the wife of 022 (the flat). The Respondents are the son and the wife of the Defendant. the Defendant. the Defendant. 2. The Respondents claim to own 50% share each in the 2. The Respondents claim to own 50% share each in the 2. The Respondents claim to own 50% share each in the flat of the Defendant. The claim of the first Respondent is flat of the Defendant. The claim of the first Respondent is flat of the Defendant. The claim of the first Respondent is under a Gift Deed executed on 4th April, 2005, a day before under a Gift Deed executed on 4th April, 2005, a day before under a Gift Deed executed on 4th April, 2005, a day before this Suit came to be filed on 5th April, 2005. The parties this Suit came to be filed on 5th April, 2005. The parties this Suit came to be filed on 5th April, 2005. The parties had entered into certain transactions evidenced by Invoices had entered into certain transactions evidenced by Invoices had entered into certain transactions evidenced by Invoices Exhibits C to K to the Plaint. The Defendant is therefore, Exhibits C to K to the Plaint. The Defendant is therefore, Exhibits C to K to the Plaint. The Defendant is therefore, imputed knowledge of the impending suit. The Defendant has imputed knowledge of the impending suit. The Defendant has imputed knowledge of the impending suit. The Defendant has sought to dispose of 50% of his share in the flat in which sought to dispose of 50% of his share in the flat in which sought to dispose of 50% of his share in the flat in which he continues to reside to his son on the premise that he was he continues to reside to his son on the premise that he was he continues to reside to his son on the premise that he was required to own an immovable property to secure admission to required to own an immovable property to secure admission to required to own an immovable property to secure admission to a foreign University for higher studies. No such a foreign University for higher studies. No such a foreign University for higher studies. No such requirement by any institution is shown. Consequently, the requirement by any institution is shown. Consequently, the requirement by any institution is shown. Consequently, the Plaintiff has shown that the Gift Deed is executed malafide Plaintiff has shown that the Gift Deed is executed malafide Plaintiff has shown that the Gift Deed is executed malafide and to defeat and delay the Plaintiff’s claim. and to defeat and delay the Plaintiff’s claim. and to defeat and delay the Plaintiff’s claim. 3. The second Respondent who is the wife of the Defendant 3. The second Respondent who is the wife of the Defendant 3. The second Respondent who is the wife of the Defendant claims 50% share in the suit flat. This is on the document of claims 50% share in the suit flat. This is on the document of claims 50% share in the suit flat. This is on the document of purchase in which she is shown as a joint owner. She has purchase in which she is shown as a joint owner. She has purchase in which she is shown as a joint owner. She has produced her income-tax returns showing the 1/2 share in the produced her income-tax returns showing the 1/2 share in the produced her income-tax returns showing the 1/2 share in the flat so purchased in the names of the Defendant and herself. flat so purchased in the names of the Defendant and herself. flat so purchased in the names of the Defendant and herself. The income-tax returns produced are from the year after the The income-tax returns produced are from the year after the The income-tax returns produced are from the year after the purchase of the flat. The income-tax returns show an income purchase of the flat. The income-tax returns show an income purchase of the flat. The income-tax returns show an income from one truck and interest of Rs.17000/- in her returns. The from one truck and interest of Rs.17000/- in her returns. The from one truck and interest of Rs.17000/- in her returns. The income of the Respondent No.2 in the years preceding the income of the Respondent No.2 in the years preceding the income of the Respondent No.2 in the years preceding the purchase of the flats is not shown because no such tax returns purchase of the flats is not shown because no such tax returns purchase of the flats is not shown because no such tax returns are produced. The Respondent No.2 has not satisfactorily are produced. The Respondent No.2 has not satisfactorily are produced. The Respondent No.2 has not satisfactorily shown how she came to purchase her 50% share. The document shown how she came to purchase her 50% share. The document shown how she came to purchase her 50% share. The document showing the name of the Defendant along with Respondent No.2, showing the name of the Defendant along with Respondent No.2, showing the name of the Defendant along with Respondent No.2, is therefore, made merely for convenience. The separate legal is therefore, made merely for convenience. The separate legal is therefore, made merely for convenience. The separate legal interest of Respondent No.2 in the flat sought to be attached interest of Respondent No.2 in the flat sought to be attached interest of Respondent No.2 in the flat sought to be attached and sold is not seen. and sold is not seen. and sold is not seen. 4. In fact the case of both the Applicants totally 4. In fact the case of both the Applicants totally 4. In fact the case of both the Applicants totally lacks bonafides. The legal right and interest of the lacks bonafides. The legal right and interest of the lacks bonafides. The legal right and interest of the Defendant in the said flat is seem. Defendant in the said flat is seem. Defendant in the said flat is seem. 5. The suit is filed as Summary Suit for recovery of 5. The suit is filed as Summary Suit for recovery of 5. The suit is filed as Summary Suit for recovery of the amounts under the transactions between the parties. The the amounts under the transactions between the parties. The the amounts under the transactions between the parties. The Summons for Judgment taken out by the Plaintiffs was made Summons for Judgment taken out by the Plaintiffs was made Summons for Judgment taken out by the Plaintiffs was made absolute upon which the Decree has been passed. absolute upon which the Decree has been passed. absolute upon which the Decree has been passed. 6. Under the provisions of Order 21 Rule 30 of the CPC 6. Under the provisions of Order 21 Rule 30 of the CPC 6. Under the provisions of Order 21 Rule 30 of the CPC such decree can be best executed by attachment and sale of such decree can be best executed by attachment and sale of such decree can be best executed by attachment and sale of the movable and immovable properties of the Defendant. The the movable and immovable properties of the Defendant. The the movable and immovable properties of the Defendant. The Plaintiffs have already taken out the Execution Application Plaintiffs have already taken out the Execution Application Plaintiffs have already taken out the Execution Application on 24th January, 2006. That application is essentially on 24th January, 2006. That application is essentially on 24th January, 2006. That application is essentially required to be pursued. The Plaintiffs have moved an required to be pursued. The Plaintiffs have moved an required to be pursued. The Plaintiffs have moved an application for the amendment of the Chamber Summons, such application for the amendment of the Chamber Summons, such application for the amendment of the Chamber Summons, such as to execute the decree by attachment and sale instead of as to execute the decree by attachment and sale instead of as to execute the decree by attachment and sale instead of by sale by the Court Receiver. by sale by the Court Receiver. by sale by the Court Receiver. 7. In these aforesaid circumstances amendments need to 7. In these aforesaid circumstances amendments need to 7. In these aforesaid circumstances amendments need to be allowed in the Chamber Summons. Copies of the Draft be allowed in the Chamber Summons. Copies of the Draft be allowed in the Chamber Summons. Copies of the Draft Amendments are served upon the Advocates for the Defendants Amendments are served upon the Advocates for the Defendants Amendments are served upon the Advocates for the Defendants as well as Respondents. as well as Respondents. as well as Respondents. 8. In any event, other reliefs in the Chamber Summons 8. In any event, other reliefs in the Chamber Summons 8. In any event, other reliefs in the Chamber Summons can be moulded upon a case for such reliefs being made out. can be moulded upon a case for such reliefs being made out. can be moulded upon a case for such reliefs being made out. Both have been extensively heard on the affidavits filed on Both have been extensively heard on the affidavits filed on Both have been extensively heard on the affidavits filed on the facts of the case. the facts of the case. the facts of the case. 8. Hence the following order is passed: 8. Hence the following order is passed: 8. Hence the following order is passed: O R D E R O R D E R O R D E R 1. The Plaintiffs shall be entitled to execute 1. The Plaintiffs shall be entitled to execute 1. The Plaintiffs shall be entitled to execute the decree obtained in the above suit under the the decree obtained in the above suit under the the decree obtained in the above suit under the Warrant of Attachment dated 24th January, 2006 by Warrant of Attachment dated 24th January, 2006 by Warrant of Attachment dated 24th January, 2006 by attachment and sale of flat No.12 Kailash Cottage attachment and sale of flat No.12 Kailash Cottage attachment and sale of flat No.12 Kailash Cottage Co-op.Housing Society Ltd., Opp: Sion Railway Co-op.Housing Society Ltd., Opp: Sion Railway Co-op.Housing Society Ltd., Opp: Sion Railway Station, Mumbai-400 022 of the Defendant, now shown in Station, Mumbai-400 022 of the Defendant, now shown in Station, Mumbai-400 022 of the Defendant, now shown in the name of his son, Respondent No.1, and his wife the name of his son, Respondent No.1, and his wife the name of his son, Respondent No.1, and his wife Respondent No.2 in the Society Records. Respondent No.2 in the Society Records. Respondent No.2 in the Society Records. 2. The Respondents shall not dispose or create 2. The Respondents shall not dispose or create 2. The Respondents shall not dispose or create any 3rd party rights in the the above flat for a any 3rd party rights in the the above flat for a any 3rd party rights in the the above flat for a period of 8 weeks from today. period of 8 weeks from today. period of 8 weeks from today. 3. The Chamber Summons disposed of accordingly. 3. The Chamber Summons disposed of accordingly. 3. The Chamber Summons disposed of accordingly. 4. This order is stayed for 4 weeks. 4. This order is stayed for 4 weeks. 4. This order is stayed for 4 weeks. (SMT. ROSHAN DALVI, J.) (SMT. ROSHAN DALVI, J.) (SMT. ROSHAN DALVI, J.)