SQP IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4820 OF 2008 IN CHAMBER SUMMONS NO.1336 OF 2003 IN EXECUTION APPLICATION NO.530 OF 2003 IN SUMMARY SUIT NO.388 OF 2002 WITH WRIT PETITION NOS.4817/2008, 4818/2008, 4819/2008 & 4821/2008 Smt.Panbai Velji Shah ...Petitioner Versus Mrs.Geeta Rajendra Chandanani & Ors. etc.etc. ...Respondents ...... Mr.Kunal Cheema i/b Ms.Kavita Brid for Petitioner. Mr.A.M.Saraogi for Respondent No.1. Mr.S.N.Patil, A.G.P. for Respondent/State. ...... CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. AUGUST 11, 2008. AUGUST 11, 2008. AUGUST 11, 2008. P.C. P.C. P.C. 1. Heard Counsel for the parties. 2. Rule. Rule made returnable forthwith by : 2 : consent. Mr.Saraogi waives notice for contesting Respondent/decree holder. Mr.Patil, A.G.P. waives notice for Respondent/State. Notice to other Respondents is waived as they are not necessary parties to the issue that is required to be addressed in the present Petition. 3. This Petition under Article 227 of the Constitution of India takes exception to the Judgment and Order passed by the Judge, City Civil Court, Borivli Sub-Division at Dindoshi (Goregaon), Mumbai dated 29th April 2005 in Chamber Summons NO.1336 of 2003. The said Chamber Summons was taken out by the wife of the Judgment Debtor (Defendant No.1). According to the Applicant/Petitioner herein, she was the joint tenant in the premises which have been attached for the purpose of execution of decree passed against her husband/Judgment Debtor (Defendant No.1). The Petitioner has relied on the rent receipt for the period from October 1997 to buttress this position. According to the Petitioner, it was specifically argued before the lower Court that the premises occupied by her cannot be attached and put to : 3 : execution as she was the joint tenant therein. However, the Court below has brushed aside that argument on the reasoning that no such case has been made out in the affidavit. That is stated in Paragraphs 22 to 24 of the impugned Judgment. The Petitioner on the other hand, not only relies on the first paragraph of the affidavit in support of the Chamber Summons but also Paragraph 10 which specifically asserts that the Petitioner was the joint tenant along with the Judgment Debtor/Defendant No.1 in respect of stated premises for which reason, decree against the Judgment Debtor/Defendant No.1 cannot be executed in respect of the said property. 4. Mr.Saraogi appearing for contesting Respondent submits that the Petitioner had dropped the argument which is now canvassed before this Court. It is not possible to countenance this submission, for the simple reason that the argument has been noted in Paragraphs 22 to 24 of the impugned Judgment but has been rejected on the finding that such plea has not been taken in the affidavit as filed. : 4 : 5. The appropriate course,in my opinion, therefore, is to set aside the impugned Judgment and relegate the parties before the same Court for deciding the Chamber Summons afresh on its own merits in the context of specific and the only ground agitated before this Court that the Petitioner is the joint tenant in the stated premises, for which reason, the suit property cannot be put to execution of decree passed against the Judgment Debtor, though Judgment Debtor incidentally happens to be the husband of the Petitioner. The Court below shall consider that aspect on its own merits in accordance with law. 6. The matter is remanded only to consider that specific argument and pass appropriate orders as may be permissible by law. All questions in that behalf are left open. 7. It is made clear that this order purports to set-aside only that reasoning of the lower Court which takes the view that the argument that the Petitioner is joint tenant in the property is : 5 : unavailable to the Petitioner since it has not been taken in the affidavit in support of the Chamber Summons. In other words, no opinion is expressed in relation to other findings recorded by the Court below in the impugned Judgment. 8. The Court below shall dispose of the Chamber Summons expeditiously preferably by end of October 2008. Parties to appear before the lower Court on 1st September, 2008 on which date the said Court may proceed to hear the matter on the same day or fix it on some other day convenient to it while ensuring that the same is finally concluded before end of October, 2008. 9. Petitions disposed of on the above terms. A.M.KHANWILKAR, J.