Chamber Summons No. 1337 of 2001,IN Summary Suit No. 4113 of 1997

23rd August, 2002

Petitioner Counsel: Mr. M.M. VASHI
Respondent Counsel: Mr. S.V. SHAH

Cases Cited:
Ramesh Himmatlal Shah V/s. Harsukh Jadhavji Joshi, (1975) 2 SCC 105 [Para 5]
Union Bank of India Vs. M/s Mittersain Rupchand, (1995) (4) Bom CR 256 : AIR 1995 BOM 371 [Para 6]

JUDGMENT

JUDGMENT :- This Chamber summons is taken out by Sanjay Jivanlal Ajabani the applicant herein who was inducted as a tenant in premises bearing room no.8. German silver Building no. 16/20, 2nd Bhoiwada Lane, Mumbai - 2 (hereinafter referred to as the said premises) by Arvind Nemchand Vakilwala and other (hereinafter referred to as Vakilwala) who was the landlord of the said premises, for vacating the attachment and removal of the seal put by the Sheriff of Bombay on the said premises in Execution Petition no. 426 of 1999 in execution of a decree passed in favour of Mukundrai Amrutlal Shrimankar (hereinafter referred to as the plaintiff) in Summary Suit no. 4113 of 1997.

2. None of the parties have chosen to adduce any evidence and the learned counsel for the applicant and the plaintiff have argued the matter on the basis of affidavits filed on record. The facts which are necessary for the purpose of decision are stated below:

3. The Plaintiff filed a suit bearing Summary Suit no. 4113 of 1997 against M/s A.P. Enterprises, a partnership firm and its partners for recovery of money. Arvind Kumar Jaikarandas Agarwal (hereinafter referred to as defendant no.2) who was the partner of M/s A.P.Enterprises was arrayed as defendant no.2 in the said suit. A money decree was passed against the defendants in the said suit on 20/10/1999. In execution Petition no. 426 of 1999 for execution of the decree the tenancy rights of the defendant no.2 in the said premises were attached on 18/12/1999.

4. The defendant no. 2 previously was a monthly tenant in the said premises under Agreement of Tenancy dated 29/1/1986. The agreement provided that the tenancy was monthly and was given for residential purpose only and defendant was not to use the said premises even as address for trade. He was also not to sublet the said premises. Vakilwala the landlord of the premises had filed a suit bearing R.A.E. Suit no 103/218 of 1988 against Ajay Kumar Jaikarandas Agarwal (defendant no.2 in Summary Suit no. 4113 of 1997) for poossession. By a judgment and order dated 13/12/1999, the Small Causes Court at Bombay decreed the suit for possession and directed the tenant to hand over possession of the suit premises to the landlord Vakilwala. In execution of the decree in R.A.E. Suit no. 103/218 of 1988, through the court bailiff, the landlord Vakilwala obtained possession of the said premises on 26/4/2000. Thereafter, the Vakilwalas let out the said premises to the applicant Sanjay Jivanlal Ajbani under an Agreement dated 19/7/2001. The applicant says that he was not aware of the attachment of the said premsises effected by the Sheriff of Bombay in the year 1999. It is only on 2/10/2001, i.e. after about three months of being in possession of the said premises that the applicant learnt about the attachment and therefore, took out this Chamber Summons for vacating the said attachment and/or for permitting him to use the said premises as a tenant of Vakilwala.

5. Mr. S.V.Shah, learned counsel appearing for the plaintiff contended that the tenancy rights held by the defendant no.2 was a property in the hands of defendant no.2 which could be attached in execution of a decree. In support of his contsntions, Mr. Shah relied upon the judgment of the supreme court in Ramesh Himmatlal Shah V/s Harsukh Jadhavji Joshi reported in (1975)2 Supreme Court cases 105. In that case, a cooperative Housing Society was owner of a flat situated in the building. The society had allotted that flat to its member who only had a right to occupy the flat and the ownership vested in the society. The flat occupied by the member of a society was attached in execution of a decree passed against such member. The issue before the Supreme Court was whether the right of a member to occupy a flat could be attached in execution of decree. The Hon'ble Supreme Court held that the right or the interest of a member of the society to occupy the flat was a species of property and that property was transferable and attachable. In para 19 of its judgment, the Apex Court observed:

"We, therefore unhesitatingly come to the conclusion that this species of property namely the right to occupy a flat of this type, assumes significant importance and acquires under the law a stamp of transferability in furtherance of the interest of commerce. We have seen no fetter under any of the legal provisions against such a conclusion. The attachment and the sale of the property in this case in execution of the decree are valid under the law." (Underlining supplied)

The Apex Court held that the occupancy rights in the flat can be attached because, they were transferable. It would therefore have to be seen whether the tenancy in the present case was transferable in order to ascertain whether it is attachable. If the tenancy was transferable, it could be attached and if not, it couldn't.

6. Relying upon the judgment of the Division bench of this Court in Union Bank of India v/s M/s Mittersain Rupchand and others reported in 1995(4) Bom CR 256 equivalent to AIR 1995 BOM 371, Shri Shah contended that the tenancy rights are attachable and transferable in execution of decree. In that case, it was held that section 15(1) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (for short Bombay Rent Act, 1947) confers a power on the state government to issue notification permitting transfer of tenancy; the legislature never contemplated that the lessee of a non residential premises cannot transfer or assign his interest in the leasehold rights; in the absence of total prohibiton of transfer of leasehold interest in respect of non residential premises, it is not correct to suggest that the lessee of such premises does not hold saleable roperty or does not hold disposing power in respect of such interest. Therefore it was held that there was no bar whatsoever under section 15(1) to attach and the leasehold interest of a lessee in a premises out for non residential purpose. The ration is not applicable to the facts of the present case because the premises sell leasee in the present case were not let out for commercial purpose. Clause nos. 2 (a) of the tenancy agreement dated 29/1/1986 between the landlord and the defendant no.2 specifically provided that premises were let out for residential purpose only and tenant was not even allowed to use the said premises as address for trade, profession nor permitted to issue a circular, pamphlet or notification. Clause 2 (g) of the agreement specifically prohibited subletting, transferring, assigning of the tenancy. Thus, in the present case, the contract of tenancy was for residential purpose and the transfer was specifically prohibited. Tenancy rights of defendant no.2 were therefore not transferable and hence not attachable.

7. Assuming that the tenancy rights of the defendant no. 2 in respect of said premises are also attachable in execution of a decree, still in the present case, the tenant/defendant no.2 had no attachable interest left in him on 16/12/1999 when the warrant for attachment was issued. Defendant no. 2 was only a monthly tenant. A suit for possession was filed against him and was decreed on 13/12/1999. On passing of a decree for possession, the interest of a tenant to remain in possession of the property by virtue of protection conferred on him under the Bombay Rent Act came to an end. His possession, with effect from 13/2/1999 became unauthorised and without the authority of law. His possession which may have a lawful origin became unlawful on passing of a decree for possession. He had no right to remain in possession after the decree for possession. He had therefore no interest in the premises in any event after 13/12/1999. Therefore, on 16/12/1999, when the warrant of attachment was issued, the tenant had no interest in the premises which could be attached. Hence, the attachment itself was invalid.

8. In my opinion, there is no force in the other contention of Mr. Shah that the landlord could not have recovered possession of the premises in execution of a decree because of the attachment effected on 16/12/1999.

9. Section 64 of the Code of Civil Procedure (for short, C.P.C) reads as under:-

"Private alienation of property after attachment to be void:

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 monies contrary to such attachment shall be void as against all claims enforceable under the attachment."

Section 64 of C.P.C. does not prohibit involuntary transfer. If does not prohibit the landlord from receiving possession in execution of a prior decree passed against a tenant. If it is to be held that an attachment of tenancy rights, the landlord would be prevented from executing a decree for possession against a tenant, by virtue of section 64 of the C.P.C. then an uncanny tenant may invite a collusive suit against him from a third party and seek attachment of the tenancy rights and thereby prevent a landlord from executing the decree for possession. Such cannot be the interpretation of section 64 of the C.P.C.

10. Mr. Shah also relied on order 21 Rule 54 of the C.P.C. which reads as under :

"Attachment of immovable property: (1) where the property is immovable, the attachment shall be made by an order prohibiting the judgment debtor from transfering or charging the property in any way and all persons from taking any benefit from such transfer or charge."

(2) Not reproduced.

Rule 54 prohibits only the judgment debtor from transferring or charging the property. It does not provide involuntary transfer or recovery by possession to a landlord in execution of a decree. As stated earlier,any contrary interpretation can permit a tenant to invite an order of attachment in a collusive suit against him and thereby prevent the landlord from obtaining the possession. Therefore, the landlord was perfectly right in executing the decree for possession obtained against the tenant inspite of attachment of the tenancy rights. The landlord after having obtained possession could have let out the premises and the new tenant would get a valid tenancy which is not subject to the prior attachment.

For these reasons, the attachment was invalid so far as the present applicant is concerned. Chamber summons is thus allowed in terms of prayer (a) and (d).

9. Mr. Shah requests for stay of his order. Mr.Vashi appearing for the applicant after consulting the applicant who is present in court undertakes that the applicant would not create any third party interest for a period of three months. In view of this, request for stay is rejected.

All concerned to act on a authenticated copy by the Chamber Registrar.

Chamber Summons allowed.