:1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION CHAMBER CHAMBER CHAMBER SUMMONS NO. 2021 OF 2007 SUMMONS NO. 2021 OF 2007 SUMMONS NO. 2021 OF 2007 IN IN IN EXECUTION EXECUTION EXECUTION APPLICATION NO. 122 OF 2005 APPLICATION NO. 122 OF 2005 APPLICATION NO. 122 OF 2005 IN IN IN ARBITRATION ARBITRATION ARBITRATION CASE NO. 79/2003-2004 CASE NO. 79/2003-2004 CASE NO. 79/2003-2004 M/s. Manglam. ... Plaintiffs. V/s. M/s. Shree Ram Fabrics & Anr. ... Defendants. And Popatlal Bharmal Shah. ... Applicants. Mr. S. Murarka i/b. S.K. Jain for the Plaintiffs. Mr. Z. Jariwala i/b. T. Jariwala & Asso. for the Defendant. ..... CORAM CORAM CORAM : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. 26TH 26TH 26TH FEBRUARY 2009. FEBRUARY 2009. FEBRUARY 2009. P.C. P.C. P.C. : : : . The Chamber Summons is moved by the Applicant. The Applicant prays that the attachment on the premises more particularly described in prayer clause (a) of the Chamber Summons be raised. 2. The Applicant claims to be a Managing Trustee of a Public Charitable Trust Registered under the Provisions of Bombay Public Trust Act, 1950. 3. He states that the property has been attached and is now likely to be sold in Execution. :2: 4. It is stated by the Applicant that the Trust is the Landlord and one Hansagauri Amrutlal Parekh was a monthly tenant of the premises. Relying upon the affidavit of Smt. Hansagauri, it is stated that the transfer of tenancy dated 20th February 2005 was effected and one Paresh Jayantilal Soni is the incoming tenant. In the meanwhile, the Trust received a letter from the Decree Holder’s Advocate informing about the Award and the Decree and stating that the Judgment Debtor - Defendant having right, title and interest in the property, it has been attached in Execution of the Award of the Judgment Debtor. 5. The contention of Mr. Jariwala, learned Advocate appearing for the Applicant is that the premises are residential. The tenancy is governed by the Maharashtra Rent Control Act, 1999. He submits that Section 60 (1)(kc) of the C.P.C., 1908 as amended from time to time, exempts residential premises to which a Rent Control Legislation applies, from the purview of attachment in Execution. He submits that the Managing Trustee has now placed on record the certified copy of Schedule I maintained by the Charity Commissioner and it is stated in the Schedule that the building known as "Shanti Nath Bhavan", Matunga, Mumbai is one of the property of the Trust. The subject premises are situated in this building. It is stated that the premises have been acquired by the Trust from the then Bombay Municipal :3: Corporation. He has also relied upon the Completion Certificate with regard to the building which has been constructed on the plot. The assessment that is levied and paid by the Trust is also referred to. Thereafter, there is a reference made to the correspondence between the earlier tenant and Smt. Hausagauri. 6. Mr. Jariwala has placed reliance upon a Full Bench decision of this Court reported in AIR 2004 Bombay page 198 (Tangerine Electronics Systems Pvt. Ltd. Mumbai V/s. Indian Chemicals & Ors.) and the principle laid down therein. According to Mr. Jariwala, the tenant’s right to remain in occupation of non-residential premises governed by Maharashtra Rent Control Act, 1999 is a property which is attachable and saleable. However, residential premises are clearly exempted from attachment and sale. 7. There is no affidavit filed in reply by the Decree holder controverting any of these contentions. 8. Considering the law laid down by this Court and the clear language of Section 60 (1)(kc) of the C.P.C., it is apparent to me that the Decree Holder could not have attached the premises, more particularly described in prayer clause (a) of the Chamber Summons, in Execution. :4: 9. In such circumstances, the Chamber Summons is made absolute in terms of prayer clauses (b) and (c). Needless to state that this order does not preclude the Decree Holder from attaching and selling other premises and properties of the Judgment Debtors. (S.C. (S.C. (S.C. DHARMADHIKARI,J.) DHARMADHIKARI,J.) DHARMADHIKARI,J.)