1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.673 OF 2005 IN EXECUTION APPLICATION NO.385 OF 2004 IN NOTICE OF MOTION NO.1404 OF 1999 IN M.J.PETITION NO.2907 OF 1999 IN PETITION NO.B/47 / 2002 WITH CHAMBER SUMMONS NO.1126 OF 2005 IN EXECUTION APPLICATION NO.385 OF 2004 IN NOTICE OF MOTION NO.1404 OF 1999 Mrs. Florine Winston Lobo ...Petitioner Vs. Winston Lobo ...Respondents And Mrs. Khushbunnisa ...Claimant /Applicant Ms.J.B . Sidhwa with P.S. Geros i/b. M/s. Joseph & Associates for Applicant & for Respondent No.7 in CHS. No.1126 of 2005 2 Mr. A.K. Tripathi i/b. A.K. Moiley for Petitioner /J.Cr. And also in CHS. No.1126 of 2005 for Petitioner Mr. P.L. Mahadik for Respondent No.4 and in CHS.1126 of 2005 also. CORAM: SMT.ROSHAN DALVI, J. DATED: 20 TH JUNE, 2008 P.C. 1. These applications arise from the matrimonial petitions filed initially in this Court and later transferred to the Family Court. The wife claimed maintenance from the husband in that proceedings. Maintenance amount was determined, but not paid. The husband has since expired. The wife was constrained to take out a number of proceedings for execution of the order of maintenance. The tenanted premises of the husband, being shop No.2 situated at ground floor, 66, Husseini building, 2nd Peerkhan Street, Nagpada, Mumbai- 400 008 came to be attached by an order dated 7 th September, 2004 passed by Hon'ble Justice Deshpande, as he then was. The wife's Advocate gave notice to the landlords of the said order on 21 st September, 2004. The warrant of attachment came to be issued on 19 th October, 2004. 3 2. Upon the service of the warrant of attachment, the present tenant who claims tenancy rights under a tenancy agreement with the landlord has applied for raising the attachment. The wife has applied for removal of the obstruction caused to the execution of warrant of attachment by the said tenant. Both the applications are heard together. 3. It is the claim of the tenant that the husband had surrendered the premises to his landlord on 2nd July, 2004 under a notorised affidavit. The new tenant was not informed of the surrender. The xerox copy of the affidavit of surrender is produced. It is seen that the rules of notarisation are not followed. The notarisation is not as per law. Consequently the surrender is not clearly shown. However, surrender of a premises need not be under a written document. It can be orally done and shown. If the premises was bonafide surrendered as claimed, the husband's right, title and interest in the premises would cease. If the husband had not surrendered the tenanted premises as required, the landlord would not have acquired title of which he could have created further interest by way of the tenancy. 4. The tenancy agreement under which the tenant claims 4 right, title and interest is executed on 06/07 / 2003, prior to the service of the Warrant of Attachment. If the premises were bonafide surrendered the creation of a new tenancy by the landlord would be binding on all parties. 5. Evidence in this Chamber Summons is led before the Commissioner. The above aspects would have to be considered from the evidence. 6. After these applications were heard at length, the new tenant has offered to make payment of the amount stated in the warrant of attachment to the wife, as also further amount of maintenance from the date of the warrant of attachment until the date of the death of her husband being 27 months, for a period between September, 2004 to November, 2006 in all accruing to Rs.1,39,000/- . The wife would be entitled to the amount under the warrant of attachment. Upon that amount being paid, no further proceedings under the warrant of attachment can ensue. The offer of payment of the amount under the Warrant of Attachment as also further amounts of maintenance payable by the husband, until his death is a fair offer. Hence, the following order:- ORDER 5 1. There shall be a stay of the execution of the warrant of attachment for a period of 8 weeks from today. 2. The new tenant shall deposit a sum of Rs.1,40,000 /- on or before 20 th August, 2008 with the Prothonotory and Senior Master, High Court Bombay. 3. After the amount is so deposited the attachment levied on Shop No.2 in the above said property shall be taken to be raised. 4. The wife shall be entitled to withdraw the amount deposited in full and final satisfaction of her claim in execution. In that case the original documents which are impounded by this Court shall be returned to the new tenant. 5. If the amount is not deposited the warrant of attachment shall be taken to be confirmed and the application of the new tenant shall be taken as dismissed. In that case the wife shall be entitled to sell the suit property in accordance with law. 6 6. The documents, if any, produced by the parties during the commission shall be returned to them. (SMT. ROSHAN DALVI, J.)