1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. CHAMBER SUMMONS NO.364 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 Vishwanath Shetty ..Applicant. .... Mr. A.A. Siddiquie for the Applicant. Mr. Y.M. Chaudhari with B.K. Karle for the Plaintiff. ... CORAM: DR. D.Y. CHANDRACHUD, J. 7th May, 2009. P.C. : The Chamber Summons has been taken out under Order 21 Rule 58 of the Code of Civil Procedure for setting aside the warrant of attachment dated 17th October, 2006 and the warrant of sale issued in 2 an Execution Application. The learned counsel appearing for the contesting parties have fairly stated before the Court that the admitted facts are to the following effect : (i) The summary suit under Order 37 came to be filed in October, 2005: (ii) The Applicants to the Chamber Summons came to purchase the residential flat which forms the subject matter of the warrant of attachment under a registered agreement dated 10th May, 2006; (iii) An ex parte decree was passed in the Summary Suit on 25th July, 2006 and (iv) The warrant of attachment was issued on 17th October, 2006. On these admitted facts, the Applicants to the Chamber Summons are entitled to the relief sought of the raising and/or setting aside of the warrant of attachment and the warrant of sale. Section 64 of the Code of Civil Procedure 1908 provides thus : “64. Private alienation of property after attachment to be void – 3 (1) Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment-debtor of any debt, dividend or other moneys contrary to such attachment, shall be void as against all claims enforceable under the attachment. (2) Nothing in this section shall apply to any private transfer or delivery of the property attached or of any interest therein, made in pursuance of any contract for such transfer or delivery entered into and registered before the attachment.” In the present case it is evident that the transfer of interest had taken place and that a registered agreement was executed much prior to the passing of the decree as well as the levy of attachment. Consequently, sub section (1) of Section 64 would have no application and the transfer is not void. Moreover, sub section (2) of Section 64 provides that nothing in the Section shall apply to a private transfer or delivery of the property attached in pursuance of a contract for such transfer or delivery entered into and registered before the attachment. In the present case, the property was, as a matter of fact, transferred and delivered in pursuance of a registered agreement dated 10th May, 2006 which was both prior to the passing of the decree and to the 4 issuance of the warrant of attachment. In the circumstances, the Chamber Summons would have to be made absolute and is accordingly made absolute in terms of prayer clause (a). *****