1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.589 OF 2006 IN EXECUTION APPLICATION NO.356 OF 1999 IN SUMMARY SUIT NO.1356 OF 1999 AND CHAMBER SUMMONS NO.1196 OF 2006 IN EXECUTION APPLICATION NO.445 OF 2006 IN DISPUTE : CC-II/434 / 8 8 M/s. Otarmal Kantilal & Co. ...Plaintiff Vs. Vilas Balkrishna Banaekak & Ors. ...Defendants And The Secretary Dattatraya Co-op.Hsg.Soc . ...Applicant And Sheriff of Bombay ...Respondent Mr.K.Jain with Ms. N. Parmar i/b. T.Goradia for Plaintiff Mr.G.Desai with K.S. Jain for Defendant 1A Mr. Vatkar i/b. G. Hiranandani for Applicant Mr.K.N.Kore for Applicant CORAM: SMT.ROSHAN DALVI, J. DATED: 18 TH SEPTEMBER, 2008 P.C. 1. The Plaintiff in Suit No.1356 of 1999 obtained a decree on 1 st July, 1996. The Disputants in Dispute No.434 of 1988 obtained an Award on 3rd November, 1999. This decree and 2 Award were obtained against the Defendants /Opponents who are the same parties. The Opponents are the owners and in possession of a flat in the Disputant Society. That flat is sought to be attached by the Plaintiffs. The attachment was levied on 7th December, 1999. Pursuant to the attachment, the Plaintiff in Suit No.1356 of 1999 proceeded to sell the flat. Bids were to be received. The bids received were below the reserve price. Hence the flat could not be sold despite the proceedings for sale undertaken on 11 th November, 2003. Proclamation was required to be issued. 2. The Plaintiff in Suit No.1356 of 1999 was not desirous to issue a proclamation. The Disputants in Dispute No.434 of 1988 sought to issue publication. They were allowed to issue publication specifically by an order of this Court dated 14 th December, 2005. 3. In the meantime the Plaintiff in Suit No.1356 of 1999 settled the dispute with the Defendants in that Suit out of Court. Hence, the Plaintiff was not desirous of proceeding with the same. 4. The Plaintiff called upon the Sheriff to raise the attachment. 3 5. Since there was an attachment of the Decreeholder as also the intervening rights of the Awardholder, the Deputy Sheriff Mumbai prudently called a meeting. The meeting was held on 26 th April, 2006 regarding the claims of these parties against the Defendants /Opponents in respect of their flat. 6. Since the Plaintiff in Suit No.1356 of 1999 was not required to prosecute the execution application which forms a part of Chamber Summons No.1166 of 2002, the Awardholder Society took out its own application for execution. The Society being the Disputant in Dispute No.434 of 1988 obtained the execution certificate on 26th June, 2006 and took out their separate application which is Chamber Summons No.1196 of 2006. In this Chamber Summons the Society/Awardholder took out an execution application on 1 st September, 2006 annexed as Exhibit- J to the Chamber Summons No.119 of 2006 requires attachment of the same flat, which has been attached in execution of the decree obtained by the Plaintiff in Suit No.1356 of 1999. 7. The Society/Awardholder seeks attachment of the same flat which has been attached under the aforesaid decree in another proceeding. They require the Court to continue the 4 attachment and to give directions for the sale of the flat of the Opponents /Defendants. 8. It may be mentioned that pending Chamber Summons No.1166 of 2002 the rights of two decreeholders/Award holders was seen to have been involved, an order came to be passed by Justice Vazifdar on 18 th December, 2002 specifying how the the sale of the attached flat was to be disbursed. That order shows that in the event of the flat being sold, the amount in excess, after satisfying the decretal amount of the Society, shall not be disbursed without giving notice to the Applicant in that application as the Applicant is one of the heirs and legal representatives of the initial owner of the flat under attachment. 9. Hence, it has been seen that since 2002 the claims of both the Decreeholder and the Awardholder in the aforesaid Suit as well as the Dispute came to be secured by the Court. 10. Now when the Decreeholder has settled his dispute with the Defendants in the Suit, it is contended on behalf of the Defendants that under provisions of Order XXI Rule 55 the attachment must be removed since the decree is satisfied. That will be the correct condition, if there was only one decree to be satisfied by the legal process already initiated. 5 In view of the fact that there is another claim which is also decreed by the competent Court and for which another execution application has been taken out, the attachment already levied would not be required to be raised only to be levied again. It is only after both the Decreeholder and Awardholder's claims are satisfied and no other claim is seen to be pending that the attachment can be raised. 11. It is seen that the subsequent Decreeholder/Awardholder, being the Society who is the disputant in the Dispute No.434 of 1988, has proceeded in an execution proceeding. The Society has also followed due legal process to execute the Award passed in its favour dated 30 th November, 1999 which has remained unexecuted for the last 9 years. Interest of justice and expeditious execution require that the attachment already levied cannot be not raised as the claim of the Awardholder in that dispute is yet not satisfied. The attachment already levied must therefore be continued in execution of the order passed in Dispute No.434 of 1988. Hence, following order:- O R D E R (i) Both the Chamber Summons are for the same reliefs. (ii) Both the Chamber Summons are made absolute in terms of prayers (a),(b) and ( c ). 6 (iv) The Judge's Order in Suit No.1356 of 1999 shall continue to be Judge's Order in Dispute No.434 of 1988. (v) It may be clarified that Chamber Summons No.589 of 2006 has been shown on my board. Chamber Summons No.1196 of 2006 has not been shown. On the application of the Counsel on behalf of the Defendants in Suit No.1356 of 1999 that Chamber Summons has been taken on board and heard on merits. (vi) It may also be mentioned that it has been stated by the Counsel on behalf of the Opponents / Judgment Debtors that the Society does not allow the sale in favour of the purchaser brought by the Opponents. No application before the Court can be allowed to be prosecuted with any oblique motive. Hence, the Opponents / J u dgment Debtors shall be entitled to bring their purchasers and to sell the attached flat to pay off the claim of the Society who are the Disputants /Awardholders in Dispute No.434 of 1988. After the Society's claim is satisfied, the attachment shall be raised. (v) The Opponents / J udgment Debtors shall be entitled to bring the purchasers and be entitled to sell the attached flat in favour of any party subject 7 to the claim of the Society and with notice to the Society within a period of 8 weeks from today. If no purchaser is brought by the Opponents / J u dgment Debtors within 8 weeks, the Disputant Society/Judgment Creditors shall be entitled to sell the attached flat to recover their Award amount. If any, surplus remains thereafter, the heirs and legal representatives of the initial titleholder of the attached flat shall be paid over. (vi) Both the Chamber Summons are disposed off accordingly. (SMT. ROSHAN DALVI, J.)