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2002 DIGILAW 566 (BOM)

Aarti S. Bajaj v. Deepak Nichani

2002-06-25

D.G.KARNIK

body2002
JUGDMENT - KARNIK D.G., J.:---This chamber summons is taken out by Smt. Shantibai Lalchand Nichani, the applicant for the purpose of vacating the attachment of the immovable property bearing Flat No. A/41, situate at 3rd floor, Atur Park in Atur Lane Co-operative Housing Society Ltd., S.T. Road, Chembur, Bombay-71 (hereinafter referred to as the said flat and movable articles consisting of furniture and fixtures, fittings, appliances machinery and other articles in the said flat. 2. The brief facts giving rise to this chamber summons may be stated thus: Ms. Aarti Bajaj filed a suit bearing Summary Suit No. 1249 of 1999 against one Deepak Nichani, son of the applicants herein for recovery of a sum of Rs. 1,00,000/- advanced as principal sum and interest thereon and costs. The suit was decreed in favour of the plaintiffs on about 5-3-2001. During the course of the arguments, it was submitted by learned Advocate for the decree holder that Deepak Nichani was carrying on business as a builder and promoter and had taken loans and advances from several persons after duping them and he is absconding. The decree holder through her power of attorney holder Mr. Laxmandas Valecha filed Execution Petition No. 26 of 2001 for attachment and sale of the said flat and the moveable articles therein. An attachment warrant attaching the said flat along with the movables therein was ordered by the Prothonotary and Senior Master on 14-2-2002. Thereafter, the present chamber summons is taken out by the applicant, the mother of the judgment debtor for raising the attachment under Order 21, Rule 5 of C.P.C. An affidavit dated 22-2-2002 sworn in by the applicant together with several documents attached thereto was filed in support of the chamber summons. Mr. Laxmandas valecha, Constituted Attorney of the decree holder filed an affidavit in reply dated 22-4-2002 and a rejoinder was filed by the applicant on 5-6-2002. No document was filed by the decree holder to show even prima facie that the said flat and/or movables lying therein belonged to the judgment debtor. Even the decree holder did not even file an affidavit alleging that the said flat and movables belonged to the judgment debtor. No document was filed by the decree holder to show even prima facie that the said flat and/or movables lying therein belonged to the judgment debtor. Even the decree holder did not even file an affidavit alleging that the said flat and movables belonged to the judgment debtor. Even the boundaries of the said flat was not mentioned as was required to be done under Clause (a) of Rule 13 of the Rule 21 of the C.P.C. The order of attachment of the said flat is in the shape of a rubber stamp namely "warrant of attachment under Order 21, Rule 43 of the C.P.C. to issue against the defendants. If this rubber stamp words "against the defendants are written in hand and the Prothonotary and Senior Master signed it, it thus appears that the order was mechanical without verifying even prima facie whether the property to be attached belonged to the judgment debtor. In the affidavit dated 22-2-2002, the applicant has stated that she is the owner of the said flat and of the movables articles therein. The applicant has attached to the affidavit a xerox copy of the agreement dated 11-11-1976 executed between the builder M/s. Atur India Pvt. Ltd. and herself under which she purchased the property. The agreement is duly stamped and registered in the office of the Sub-Registrar, Bombay. The applicant has also attached certificates issued by the builder showing the receipt of the full consideration and the certificate showing the allotment of the said flat. The applicant has also affixed copy of the share certificate issued by Atur Lawns Co-operative Housing Society Ltd. in which the said flat is situated. The share certificate stands in the name of the applicant. The applicant has also annexed copies of the bills regarding the payment of maintenance and society charges, bill for payment of electricity charges and bill for payment of telephone charges all of which stands in the name of the applicant. The applicant has also produced copies of income tax returns showing that the applicant had shown income from the said property of the said flat. Since learned Advocate for decree holder objected to the admissibility and proof of the office copies of the income tax return. I am not taking them into consideration for the purpose of deciding the chamber summons. The correctness of other documents were not disputed. Since learned Advocate for decree holder objected to the admissibility and proof of the office copies of the income tax return. I am not taking them into consideration for the purpose of deciding the chamber summons. The correctness of other documents were not disputed. Correctness of the documents other than copies of the income tax returns were however, not disputed. Thus, the agreement for sale and certificate of the builder regarding the payment of money, share certificate prove that the said flat was purchased by the applicant and stands in the name of the applicant. In the reply affidavit, Mr. Laxmandas Valecha has given up the theory that the said flat belongs to the judgment debtor. He has stated in para 11 of the affidavit in reply that the said flat was purchased by Lalchand Nichani (husband of the applicant) during his life time of the H.U.F. property. It is then alleged that the judgment debtor has ¼th right title and interest existing in the said property. Then in any event, because of exclusive ownership of the judgement debtor has given up by the decree holder herself. As the agreement was executed by the applicant and other related documents relating to the payment of money to the builder, electricity bills, society charges and more so the share certificate of the society in which the society flat stands in the name of the applicant, it cannot be disputed that the applicant is the ostensible owner of the property. The burden of proving that the ostensible owner is the real owner lies on the person who asserts to the contrary. The decree holder has not discharged that burden. If the document of title relating to the immovable property stands in the name of a person prima facie, the person in whose name the document stands is presumed to be the owner of the property until the contrary is shown. Nothing to the contrary is shown by the decree holder. 3. It was strongly urged by learned Advocate for the decree holder that the judgment debtor was 3 residing in the said flat and his name board was also affixed to the said flat and therefore, the judgment debtor should be deemed to be the owner of the property. It must be observed that the judgment debtor is the son of the applicant who is the owner. It must be observed that the judgment debtor is the son of the applicant who is the owner. There is nothing wrong in allowing her son to reside with her. It is also nothing wrong in allowing the son to affix his name board. Merely because, a person resides with the owner and is alleged to affix the name board, he does not become owner of the property. The title against the judgment debtor was not in exclusive possession even to allege a possessory title. When the documents to the title of the property are produced on record and are not disputed, question of possessory title also does not arise. 4. It was contended by the Advocate for the decree holder that the furniture in the premises was made out of the funds of C.G. Constructions and that the applicant is the partner in C.G. Construction. The applicant has denied in para 7 of the affidavit in rejoinder these averments. In the circumstances, the applicant decree holder had not placed on record any material to show that the applicant was partner of C.G. Construction or that the movables and immovables were purchased out of C.G. Construction. This contention of decree holder is therefore, rejected. 5. Before parting with the case, I am constrained to make certain observations, despite stated to be prevailing about the issuance of the attachment warrants. 6. I was informed at the bar that when the execution petition for recovery is filed with a prayer for attachment of the immovable property alleged to be belonging to the judgment debtor, it is not insisted upon even a prima facie proof that the property to be attached belonged to the judgment debtor. Even an affidavit of the decree holder that the property belongs to the judgment debtor is not insisted upon. An order for attachment of the immovable property is issued without even prima facie ascertaining that the property to be attached belonged to the judgment debtor. The Court office conformed to this practice. 7. This practice must be immediately discontinued. It is necessary that the Prothonotary and Senior Master should insist upon other prima facie proof that the property to be attached belonged to the judgment debtor or atleast affidavit of the decree holder to that effect. The Court office conformed to this practice. 7. This practice must be immediately discontinued. It is necessary that the Prothonotary and Senior Master should insist upon other prima facie proof that the property to be attached belonged to the judgment debtor or atleast affidavit of the decree holder to that effect. Only after the Prothonotaary and Senior Master is satisfied that either on the basis of the documents or on affidavit of the decree holder or any other person that the movable property sought to be attached prima facie belongs to the judgment debtor, it would be prudent to issue an order of attachment. This can cause serious prejudice to the real owner of the property. 8. Office is accordingly directed to follow this practice in future. As regards the movable property lying in the flat, there can be no presumption in favour of the applicant or in favour of the decree holder. If the applicant and the defendant being her son were living together, it may be the position that movable property may belong to either of them. The applicant has produced certain receipts of certain articles showing that they were purchased not by the judgment debtor but, the same were purchased by the applicant and some other were purchased by her daughter-in-law. The said articles are lying in the said flat. According to the learned Advocate for the decree holder, the judgment debtor is absconding and is not living in the said flat. He says that even warrant of arrest of the judgment debtor have been issued in criminal cases but, is not traceable. The judgment debtor is not in possession of the articles to claim possessory title. It is therefore, not that the said movable belonged to the judgment debtor. The applicant has stated on oath in the affidavit that regarding the furniture, washing machine, steel cupboard, ceiling fans and air conditioners, they being very old and their bills being not traceable, she has stated that the said articles were purchased by her and her husband has given it to her. As the flat was purchased more than 20 years ago, it is possible that the bills thereof are not available. The statement in the affidavit made by the applicant inspires confidence. The decree holder cannot have any personal knowledge about the purchase of the articles. As the flat was purchased more than 20 years ago, it is possible that the bills thereof are not available. The statement in the affidavit made by the applicant inspires confidence. The decree holder cannot have any personal knowledge about the purchase of the articles. The Constituted attorney of the decree holder has sworn an affidavit which does not even claim that he has personal knowledge that these articles belonged to the judgment debtor. 9. In the circumstances, attachment for movables also cannot survive. In the circumstances, chamber summons is made absolute in terms of Prayer Clause (a). -----