Allowed

ashok kumar agarwal v. mr ramjivan saraf and Anr. and mr dharmaveer poonia

Bombay HC24 Nov 2006CHS/1298/2006

Case brief

AI extract

What is this about?

The court recalled an order appointing a Court Receiver for formal possession of a flat. It held that the respondent had no title as the property had been sold and transferred to a third-party applicant who was in possession, rendering execution against the flat unsustainable.

What did the court decide?

The Chamber Summons is made absolute; the Court Receiver is discharged; the respondent is directed to pay costs of Rs.5,000; status-quo maintained for two weeks.

ashok kumar agarwal Vs mr ramjivan saraf and Anr… — Execution and Attachment | Bombay HC (2006)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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ORDINARY ORIGINAL CIVIL JURISDICTON

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CHAMBER SUMMONS NO. 1298 OF 2006

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IN

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CHAMBER SUMMONS NO. 203 OF 2005

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IN

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EXECUTION APPLICATION (LODG) NO. 96 OF 2005

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IN

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AWARD DATED 18TH MARCH, 2002

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Mr.Ashok Kumar Agarwal....Applicant
vs.
Mr.Ramjivan Saraf....Respondent
Mr.Dharamveer Poonia....Applicant.

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S.A.Sawant with Samir Suryavanshi

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for the applicants.

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Mr. Dinesh C.Shah i/by.S.C.Swami

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for the claimants.

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Mr.A.M.Sarogi with A.S.Chaurasia

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for respondents.

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24TH NOVEMBER, 2006.

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P.C. :

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1.The applicant has taken out this Chamber

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Summons to recall an order dated 7/2/2006 passed by
me in Chamber Summons No. 203 of 2005 in Execution
Application (L) NO. 96 of 2005.

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2.The applicant has an award in his favour in
the sum of about Rs.5 lacs. He therefore filed the
above Execution Application. In that application,
he took out the above Chamber Summons No. 203 of
2005 and by the order dated 7/2/2006 I recorded the
respondent/debtors statement that he had no
objection to the appointment of Court Receiver only
to take formal possession.

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3.The present applicant (described as the
appellant) is a third party to whom the property
against which execution is sought to be levied had
already been sold.

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4.The present applicant purchased the flat by an
agreement dated 24.7.2002 from the respondent for a
consideration of Rs.14,75,000/-. The entire amount
had been paid to the applicant. As the society had
not granted the NOC accepting the present applicant

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as a member, proceedings were adopted before the
Registrar of Co-operative Societies under Section
79(2) of the Maharashtra Co-operative Societies Act.
That application was allowed by an order dated
9/1/2006.

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5.Thereafter the respondent had filed a suit in
the City Civil Court being S.C.Suit No. 4 54 6 of
2002 seeking to challenge the said agreement dated
24.7.2002. An order in terms of the consent terms

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was passed on 3.9.2002 by which, the respondent
inter-alia confirmed the agreement dated 24.7.2002.
The term also provide that possession would be
handed over to the applicant. Infact the present
applicant’s case is that he has been in possession
since July 2002 itself. That appears to be so. The
clause in the consent terms was in all probability
only a formal clause. In any event possession was
admittedly handed over prior to the order dated
7/2/2006 sought to be set aside. Further the
society by its letter dated 6/2/2006 confirmed that
it had given effect to the order of the Registrar of
Co-operative Societies dated 7/2/2006 accepting the

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present applicant as the member.

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6.The present applicant was made aware of the
order dated 7/2/2006 only when the Court Receiver
visited the premises to execute the same.

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7.Thus the respondent had no subsisting right,

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title and interest inrespect of the flat against
which execution could have been levied by the
original applicant/decree holder.

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8.In the circumstances, there is absolutely no
case for levying execution against the flat
which now clearly belongs to the present applicant.

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9.In the circumstances, the Chamber Summons is
made absolute in terms of prayer clause (a). The
Court Receiver is hereby discharged. The respondent
shall pay to the present applicant costs fixed at
Rs.5,000/- within four weeks from today.

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10.Mr. Sawant states that for a period of two
weeks from today, the present applicant will

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maintain status-quo in respect of the suit flat.

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sd/-

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*******

ashok kumar agarwal v. mr ramjivan saraf and Anr. and mr dharmaveer poonia

Case brief

What is this about?

What did the court decide?

ashok kumar agarwal v. mr ramjivan saraf and Anr. and mr dharmaveer poonia

Case brief

What is this about?

What did the court decide?

What the court decided

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