Ramesh Himmatlal Shah Vs. Harsukh
Jadhavji Joshi [1975] INSC 109 (25 April 1975)
GOSWAMI, P.K.
GOSWAMI, P.K.
ALAGIRISWAMI, A.
BHAGWATI, P.N.
CITATION: 1975 AIR 1470 1975 SCR 270 1975 SCC
(2) 105
CITATOR INFO :
D 1989 SC 122 (12) R 1990 SC1563 (13)
ACT:
Maharashtra Co-operative Societies Act, 1960
Sections 29,31,47 and 146(a), 1961, Rule 24 and Bye-Laws 9 and 71-D right of a
judgment-debtor to occupy a flat owned by a housing society, if liable to
attachment and sale in execution of a decree against him.
Code of Civil Procedure, Section 60-Right to
occupy a flat owned by a co-operative housing society, if a species of
property.
HEADNOTE:
The appellant is the decree-holder. He
obtained a money decree against the respondent judgment-debtor and took a
warrant of attachment of flat No. 9 of Paresh Cooperative Housing Society
Limited at Santacruz, Bombay. This flat was attached on August 8, 1970 and a
warrant of attachment was served on the judgment-debtor while he was in jail in
Rajkot. In, due course a sale proclamation was also issued in respect of the
flat while the judgment-debtor was yet in jail. At this stage of the
proceedings, the judgment- debtor's brother, Hasmukh J. Joshi took out a
chamber summons challenging the execution oil the ground that the flat did not
belong to the judgment-debtor but belonged to him and to the judgment-debtor's
wife and that the attachment should be raised. His chamber summons was made
absolute but in appeal the order was set aside and the matter was remanded. The
aforesaid chamber summons was, however, finally dismissed on September 30,
1971. Hasmukh did not take any further action against the rejection of his
claim to the property. After coming out of the jail, the judgment-debtor filed
a suit some time in 1972 to set aside the decree. He, however, could not secure
an order for injunction to prevent the execution of the decree and the suit is
pending. The flat was offered for sale and was purchased in auction by one
Bhupendra N. Shah for a sum of Rs. 34,000/-. The sale, however, is not yet
confirmed.
Subsequently a new plea was taken by the
judgment-debtor.
This time he filed a chamber summons on March
28, 1972, praying for the dismissal of the execution petition filed by the
decree-holder and for setting aside the warrant of attachment and proclamation
of sale on the ground that the flat being a flat in a cooperative housing
society was not liable to attachment and sale. It was also stated that he had
not saleable interest in the said property under section 60, Civil Procedure
Code, and therefore, it was not liable to attachment. The Judge, City Civil
Court, Bombay, dismissed the chamber summons. The learned single Judge, Bombay
High Court, however, in appeal allowed the claim and made the summons absolute
by directing that the attachment and sale of the flat being illegal be set
aside. The appellant preferred a Letters Patent Appeal before the Bombay High
Court without success and the decision of the learned single Judge was
affirmed. Hence this appeal by special leave.
It was contended for the appellant that the
right of the judgment-debtor, who claims the right to occupation of flat No. 9,
is liable to attachment and sale in execution of a decree. The respondent
contended that section 31 of the Maharashtra Co-operative Societies Act, 1960,
completely bars attachment and sale of the flat in question in execution of the
decree. It was also contended for the respondent that section 60, Civil
Procedure Code, does not specify that this species of property is liable to attachment.
Allowing the appeal,
HELD : (i) While section 29(2) refers to
transfer of a member's share or his interest in the capital or property of any
society, section 31 in contrast speaks of "the share or interest of a
member in the capital of a society". The Act, therefore, makes a clear
distinction between the share or interest in the capital and share or interest
in property of the society. [278D-E] (ii) The right or interest to occupy is a
species of property. There is 271 nothing in the language of section 31 to
indicate that the right to occupation which :is the right to be sold in auction
is not attachable in execution of the decree. There is nothing in section 31 to
even remotely include a prohibition against attachment or sale of the aforesaid
right to occupation of the flats. The only restrictions under section 29(2) are
that the member may not transfer his interest in the property prior to one year
and the transfer is made to an existing member of the society or to a person
whose application for membership has been accepted by the Society. It is true
that bye-law 71D says that a member to whom a tenement is allowed shall not
assign or underlet, vacate or part with the possession of the tenement or any
part thereof without the previous consent in writing of the Managing Committee,
but there is nothing to show that contravention of this bye-law makes the
assignment void under the Act unlike in the case of a transfer being void under
section 47(3). Section 29 read with rule 24 shows that there is no prohibition
as such against transfer of a share to a member or even to a non-member if he
consent. to be a member and makes an application for membership by purchasing
five shares as provided under bye-law 9. There is no reason to think that there
is any question of refusal of membership of the Society to a non-member if he'
is qualified otherwise and makes an appropriate application in which cast the
transfer of shares will be operative and thus the assignment of the right to
occupation will hold good.
[278F-H, 279-B] (iii)Section 60 of the Civil
Procedure Code is not exhaustive as such. It also refers to any other saleable
property, movable or immovable, whether the same be held in the name of the
judgment-debtor or by another person on his behalf. The right to occupation of
a flat is property both attachable and saleable. Specific non-inclusion of a
particular species of property under section 60, is therefore, not of any
consequence if it is saleable otherwise. [280-F-G]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1539 of 1974.
Appeal by special leave from the Judgment and
Order of the High Court of Bombay in LPA No. 80 of 1972.
B.R. Zaiwala, D. R. Zaiwala, K. J. John and
J. B.
Dadachanji, for the Appellant.
P. K. Chatterjee and D. P. Mukherjee, for the
Respondent.
G. L. Sanghi and H. K. Puri, for Shri
Suryakant N. Gangani (Purchaser) The Judgment of the Court was delivered by
GOSWAMI, J.-This appeal in forma pauperis rainses an impor- tant question of
law : Is a flat in a tenant co-partnership housing society under the
Maharashtra Cooperative Societies Act, 1960 liable to attachment and sale in
execution of a decree against a member in whose favour or for whose benefit the
same has been allotted by the society ? We may briefly note the facts The appellant
is the decree-holder. He obtained a money decree against the respondent
judgment-debtor and took a warrant of attachment of flat No. 9 of Paresh
Cooperative Housing Society Limited at Santacruz, Bombay. This flat (described
as ownership flat in ,common parlance) was attached on August 8, 1970 and a
warrant 272 of attachment was served on the judgment-debtor while he was in
jail in Rajkot. In due course a sale proclamation was also issued in respect of
the flat while the judgment-debtor was yet in jail. At this stage of the
proceedings the judgment-debtor's brother, Hasmukh Joshi (for brevity Hasmukh)
took out a chamber summons challenging the execution on the ground that the
flat did not belong to the judgment-debtor but belonged to him and to the judgment-
debtor's wife and that the attachment should be raised. His chamber summons was
made absolute but in appeal the order was set aside and the matter was
remanded. The aforesaid chamber summons was, however, finally dismissed on
September 30, 1971. Hasmukh did not take any further action against the
rejection of his claim to the property. After coming out of the jail, the
judgment-debtor filed a suit some time in 1972 to set aside the decree. He,
however, could not secure an order for injunction to prevent the execution of
the decree and the suit is pending. The flat was offered for sale and was
purchased in auction by one Bhupendra N. Shah for a sum. of Rs. 24,000. The
sale, however, is not yet confirmed. Subsequently a new plea was taken by the
judgment-debtor. This time he filed a chamber summons on March 28, 1972,
praying for the dismissal. of the execution petition filed by the decree-holder
and for setting aside the warrant of attachment and proclamation of sale on the
ground that the flat being a flat in a cooperative housing society was not
liable to attachment and sale. It was also stated that be had no saleable
interest in the said property under section 60, Civil Pro- cedure Code, and
therefore, it was not liable to attachment.
The Judge, City Civil Court, Bombay,
dismissed the chamber summons. The learned single Judge, Bombay High Court,
however, in appeal allowed the claim and made the summons absolute by directing
that the attachment and sale of the flat being illegal be set ,aside. The appellant
preferred a Letters Patent Appeal before the Bombay High Court without success
and the decision of the learned single Judge was affirmed. Hence this appeal by
special leave.
The flat in question is admittedly owned by
the Paresh Cooperative Housing Society Limited (briefly the Society).
Originally 'this flat stood in the name of
one Ramesh Hariram Chande and his wife. It is not disputed before us and it has
been so held by the court in the claim case by the judgment-debtor's brother
that the respondent purchased the flat benami in the name of his brother
Hasmukh and his wife Shashikala. Although, therefore, the respondent is not t
registered holder of the flat, it is clear that the flat is held by his brother
and his wife on behalf of the respondent. This is to be, noted as section 60,
Civil Procedure Code, reaches a benami holding., It may also be noted that the
respondent is now fighting the case on the basis that the right to occupy the
flat in question is his property which is not liable to attachment and sale.
We should also note here that after the High
Court invalidated the attachment and sale, the flat was purchased by one
Suryakant N. Sangani (briefly Suryakant) having acquired the shares in the
Society from Hasmukh and Shashikala. It is said that on the joint application
of Shashikala and Suryakant, the shares were transferred to the latter on or
about May 15, 1974.
273 The appeal came up for hearing earlier
and when it was found that the respondent was not represented the court issued
notice to the purchaser, Suryakant, and also directed for appointment of an
amicus curiae. Mr. Chatterjee has now appeared before us as amicus curiae and
the purchaser has also entered appearance through Mr. Sanghi. Ultimately,
however, we did not hear Mr. Sanghi, as we are concerned in this appeal only
with the question of attachability and sale ability which is a condition prior
to the purchase of the property by Bhupendra N. Shah. Mr. SangHi, therefore,
had to retire from the appeal.
The point that arises for consideration in
this appeal, as stated earlier, is whether the right of the judgment-debtor,
who claims the right to occupation of flat No. 9, is liable to attachment and
sale in execution of a decree. Before we proceed further it is necessary to go
through the relevant provisions of the Maharashtra Cooperative Societies Act,
1960 (briefly- the Act),. The Maharashtra Cooperative Societies Rules, 1961
(briefly described as the Rules) and the Bye-laws of the Society. The Act was
passed in the year 1961 to consolidate and amend the law relating to
cooperative societies in the state of Maharashtra.
Section 2 of the Act contains the
definitions. By section 2(5) 'by-laws' means by-laws registered under this Act
and for the time being in force, and includes registered amendments of such
by-laws". By section 2(11) "dividend" means the amount paid, out
of the profits of a society, to a member in proportion to the shares held by
him. By section 2(16)... housing society' means a society the object of which
is providing its members with dwelling houses". By section 2(9)
"'member' means a person joining in an application for the registration of
a cooperative society which is subsequently registered, or a person duly
admitted to membership of a society after registration, and includes a nominal,
associate or sympathiser member". By section 2 (1) (b) "'associate
member' means a member who holds jointly a share of a society with others, but
whose name does not stand first in the share certificate". By section 2(1)
(c) " 'nominal member' means a person admitted to membership as such after
registration in accordance with the by-law". By section 2(21) "
'prescribed' means prescribed by rules". By section 2(31) "'working
capital' means funds at the disposal of a society inclusive of paid up share
capital, funds built out of profits, and money raised by borrowing and by other
means." By section 4 "a society, which has as its objects the
promotion of the economic interests or general welfare of its members, or of
the public, in accordance with cooperative principles, or a society established
with the object of facilitating the operations of any such society, may be
registered under this Act.
Provided that, no society shall be registered
if it is likely to be economically unsound, or the registration of which may
have all adverse effect on development of the cooperative movement".
274 Chapter III of the Act deals with members
and their rights and liabilities. Section 22 with which this chapter opens
provides how a person may become a member. For example by section 22(1A)
subject to the provisions of section 24, an individual competent to contract
under the Indian Contract Act may be admitted as a member. By section 23(1)
"No society shall, without sufficient cause, refuse admission to
membership to any person duly qualified therefore under the provisions of this
Act and its bye-laws". By sub-section (2), "Any person aggrieved by
the decision of a society, refusing him admission to its membership, may appeal
to the Registrar" and the. decision of the Registrar under sub- section
(3) shall be final. By section 25 "aperson shall cease to be a member of a
society on his resignation from the membership thereof being accepted, or on
the transfer ofthe whole of his share or interest in the society to another
member, or on his death, or removal or expulsion from the society". By
section 26, "no person shall exercise the right of a member of a society,
until he has made such payment to the society in respect of.' membership, or acquired
such interest in the society, as may be prescribed by the rules, or the by-laws
of such society".
Section 28 contains certain restrictions on
holding shares.
Two of the material sub-sections of section
29 which are important and with which we are concerned may be set out :
29(1). "Subject to the provisions of the
last preceding section as to the maximum holding of shares and to any rules
made in this behalf, a transfer of, or charge on, the share or interest of a
member in the share capital of a society shall be subject to such conditions as
may be prescribed.
(2) A, member shall not transfer any share
held by him or his interest in the capital or property of any society, or any
part thereof, unless (a) he has held such share or interest for not less than
one year ;
(b) the transfer is made to a member of the
society or to a person whose application for membership ,has been
accepted".
Section 31 may also be set out :- "The
share or interest of a member in the capital of a society, or in the loan-stock
issued by a housing society, or in the funds raised by a society from its
members by way of savings deposit, shall not be liable to attachment or sale
under any decree or order of a Court for or in respect of any debt or liability
incurred by the member ; and accordingly, neither the Official Assignee under
the Presidency-towns Insolvency Act, 1909, nor a Receiver under the Provincial Insolvency
Act, 1920, nor any such person or authority under any corresponding law for the
time being in force, shall be entitled to, or have any claim on, such share or
interests." 275 Section 47 so far as material for our purpose may be
quoted 47(1). "Notwithstanding anything in any other law for the time
being in force, but subject to any prior claim of Government in respect of land
revenue or any money recoverable as land revenue and to the provisions of
section 60 and 61 of the Code of Civil Procedure, 1908.
(b) any outstanding demands or dues payable
to a society by any member or past member or deceased member, in respect of
rent, shares, loans or purchase money or any other rights or amounts payable to
such society, shall be a first charge upon his interest in the immovable
property of the society".
(2) No property or interest in property,
which is subject to a charge under the foregoing sub-section,. shall be
transferred in any manner without the previous permission of the society; and
such transfer shall be subject to such conditions, if any, as the society may
impose.
(3) Any transfer made in contravention of
subsection (2) shall be void".
Section 165 contains the rule making powers.
The last section 167 provides that "for the removal of doubt, it is hereby
declared that the provisions of the Companies Act, 1956, shall not apply to
societies registered or deemed to be registered, under this Act".
We may now turn to the relevant Rules. By
rule 9 "when a society has been registered the by-laws of the society as,
approved and registered by the Registrar shall be the bye- laws of the
society". Rule 10 contains classification and sub-classification of
societies and we are concerned with the fifth class mentioned therein, namely,
the 'Housing Society' which again is sub-divided into three categories and we
are concerned in this appeal with the second category, namely, 'Tenant
Co-partnership Housing Society', which is described therein as an example of
"Housing Societies which hold both lands and building-, either on lease
hold or free hold basis and allot them to their members".
Chapter III of the Rules deals with members
and their rights and liabilities. Rule 19 contains conditions to be complied
with for admission for membership. Rule 24 provides for the procedure for
transfer of shares. Rule 28 provides for expulsion of members and expulsion
from membership may involve forfeiture of shares held by the member.
We may now notice some of the material Bye-
laws of the Society.
276 Bye-law 6. "All persons permanently
residing in Bombay city and suburban area and who have signed the application
for registration, are original members. Other members may be admitted by the
General Body.
Every person on applying for membership shall
deposit Re. 1 as entrance fee and the value of at least five shares for which
he shall receive a copy of the Bye-laws. In case where an application is
refused, the deposit shall ordinarily be returned".
6(1). "The General Body may admit any
new members other than the promoters subject to the applicants satisfying the
qualifications for membership as prescribed under the bye- laws".
(2) "The General Body shall not admit
members exceeding the number of tenements or plots available for
allotment".
(3) The General Body alone shall be competent
to allot tenements to the members on the basis of policy framed by it for such
allotment".
7(a). "A person may be admitted as a
nominal member on payment of Re. 1 only as entrance fee for the purposes of
occupying a shop/godown/garage in the society. A nominal member shall not
exercise any right of membership or receive any a vantage, or benefit or
dividend, etc." 7(b). "A subletee, a licencee or a caretaker may also
be admitted as a nominal member of the Society on payment of Re. 1 as entrance
fee. Such member shall not exercise any right of membership or receive any
advantage or benefit or dividend, etc.".
8(a). "No person shall be admitted as a
member of the Society who already owns a house, a plot or a flat in Bombay city
and suburban area, in his own name or in the name of any of his dependents or
of his family members, such as wife/husband, children, etc.
and whose need of a house, a plot or a flat
in the opinion of the General Body are not considered pressing or
deserving........
10. "No person shall exercise, the
rights of a member of the Society until he is 'admitted as such as laid down in
Bye-law No. 6 and holds not less than five fully paid shares in the Society and
his name has been entered in the Register of Members".
Chapter VII of the Bye-laws provides for
transmission of interests. Bye-law 14 contains how a nomination has to be made,
how 'a member may nominate a person to whom his share or interest in the
society or so much thereof as is specified in such nomination 277 shall be
transferred at his decease, etc. Bye-law 15(1) provides that ,ton receiving
satisfactory proof of the death of a member, the General Body may transfer the
share, or the interest of the member to the person or persons nominated or if
there is no person so nominated to such person as may appear to the General
Body to be the heir or the legal representative of the member or to pay such a
sum representing the value of such nominator's share or interest as determined
in accordance with the Rule 23 of the M.C.S.
Rules 1961 deducting all sums due to the
Society from the nominator........ Under Bye-law 15(4). where a share or shares
were issued to a member by virtue of his being a tenant or a lessee what would
happen on the death of such a member is provided for.
Chapter XX deals with tenants. Bye-law 71
with which it opens says "no member shall be a tenant of the Society
unless he subscribes to such number of shares as the Managing Committee
prescribes".
71A. "Whenever a member to whom a
dwelling house/ tenement or flat has been allotted by the society does not
require it for his own use for any particular period, he may hand it over to
the society for using the same in such manner as it may consider best".
71B. "The society may offer the dwelling
house/tenements or flats falling vacant in its possession in terms of the
provisions of bye- law No. 71(A) above, to any person in its discretion for
temporary occupation for the period indicated by the original allottee on such
clear understanding provided that:
(i) It shall give preference to such person
as has already been enrolled as member of the society in terms of the
provisions in bye-law but who could not be allotted a dwelling house/tenement
or flat by it;
(ii) It shall enroll the person to whom the
dwelling house/tenement or flat is proposed to be allotted as a nominal member
if he is not already a member of the society.
(iii)The payments received for such temporary
occupation shall be credited to the account of the original allottee and be
apportioned towards satisfaction of the dues and the demands of the society
outstanding against him under these Bye-laws and the tenancy regulations.
71D. "A member to whom a tenement is
allotted shall occupy it himself and shall not assign, underlet, vacate or part
with the possession of the tenement any part thereof without the previous
consent in writing of the Managing Committee." 278
72. "No dwelling house offered on lease
shall be taken by persons who are not members of the Society unless no member
is willing to take it".
Form A to the Bye-laws contains
"regulations relating to;
tenancies to be granted by the Society to
members in respect of houses held by the Society".
From a review of the foregoing provisions the
position with reference to the particular Society is as follows There is no
absolute prohibition in the Act or in the Rules Or in the Bye-laws prohibiting
transfer of interest of a member in the property belonging to the Society. The
only transfer which is void under the Act is one made in contravention of
sub-section (2) of section 47 [see section 47(3)]. We have not been able to
find any other provision anywhere to the same effect. In the scheme of the
provisions a dichotomy is seen between share or interest in the capital and
interest in property of the Society. While section 29(2) refers to transfer of
a member's share or his interest in the capital or property of any society,
section 31 in contrast speaks of "the. share or interest of a member in
the capital of a society". The Act, therefore, makes a clear distinction
between the share or interest in the capital and share or interest in property
of the Society.
We have also noticed that the Act does
recognise interest in the immovable property of the Society as well [see
section 47(1)(b)]. We have seen the qualifications for membership.
There is no reason to suppose that if the
qualifications under the Bye-laws are fulfilled an application for membership
may be rejected. It is admitted that the flat is owned by the Society and the
judgment-debtor has a right or interest to occupy the same.
This right or interest to occupy is a species
of property.
We have to consider whether this right to the
particular property is attachable and saleable in execution of the decree against
the judgment-debtor. It is contended by Mr. Chatterjee, amicus curiae, that
section 31 of the Act completely bars attachment and sale of the said property
in execution of the decree. We have already pointed out the difference in
language between section 29 and section 31 and also made reference to section
47(1) (b) in that connection.
There is nothing in the language of section
31 to indicate that the right to occupation which is the right to be sold in
auction is not attachable in execution of the decree.
There is nothing in section 31 to even
remotely include a prohibition against attachment or sale of the aforesaid
right to occupation of the flat. Once section 31 is out of the way, we am left
with section 29 wherein we do not find even a provision of prior consent for
transfer of share or interest in such property. The only restrictions under
section 29(2) are that the member may not transfer his interest in the property
prior to one year and the transfer is made to an existing member of the Society
or to a person whose application for membership has been accepted by the
Society. It is true that bye-law 71D says that a member to whom a tenement is
allotted shall not assign or underlet, vacate or part with the possession of
the tenement or any part thereof without the previous consent in 279 writing of
the Managing Committee but there is nothing to show that contravention of this
bye-law makes the assignment void under the Act unlike in the case of a
transfer being void under section 47(3). There is no impediment to ratification
of the assignment by the Committee particularly in view of the legal position
arising out of the conjoint effect of section 29, rule 24 and bye-law 9.
Section 29 read with rule 24 shows that there is no prohibition as such against
transfer of a share to a member or even to a non- member if he consents to be a
member and makes an application for membership by purchasing five shares as
provided under bye-law 9. Reading the aforesaid provisions there is no reason
to think that there is any question of refusal of membership of the Society to
a non-member if he is qualified otherwise and makes an appropriate application
in which case the transfer of shares will be operative and thus the assignment
of the right to occupation will hold good. Further it is significant that under
section 146(a) of the Act, contravention of sub-section (2) of section 47 is
punishable under section 147 of the Act. Contravention of any bye-law is,
however, ;no offence. 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.
Multi-storeyed ownership flats on cooperative
basis in cities and big towns have come to stay because of dire necessity and
are in the process of rapid expansion for manifold reasons. Some of these are:
ever growing needs of an urban community necessitating its accommodation in
proximity to cities and towns, lack of availability of land in urban areas,
rise in price of building material, restrictions under various rent
legislations , disincentive generated by tax laws and other laws for embarking
upon housing construction on individual basis, security of possession depending
upon fulfillment of the conditions of membership of a society which are none
too irksome. In absence of clear and unambiguous legal provisions to the
contrary, it will not be in public interest nor in the interest of commerce to
impose a ban on sale ability of these flats by a tortuous process of reasoning.
The prohibition, if intended by the legislature, must be in express terms. We
have failed to find one.
The phenomenon of ownership of flats as
contra-distinguished from personal houses has been 'in vogue in England as well
as in the European Continent. Ownership rights 'over separate parts of a
building are mentioned in Coke on Littleton and such "super-imposed free
holds" have existed in England in various places for a long time (see
International and Comparative Law Quarterly Volume VII January 1958, pages
36-37).
With regard to a flat-owners's right to
dispose of his rights, it is pointed out that "the flat owner may, in the
words of a leading French Commentator" "sell, donate, leave by will,
let or hypothecate" his right. The rights are regulated by statutes in the
Continent. The 10 SC/75-19 280 German Statute, for example, allows the flat
owner's right to dispose of his property to be made subject to the consent of
other flat owners, out such consent may be refused only "for a very
important reason," Article 12(1), (2)] and the statute gives the aggrieved
flat-owner easy access to the court if a violation of this provision is alleged
(see ibid page 39). Thus the trend is towards recognition of these rights.
Now that attachment and sale have been held
to be valid, it will be for the auction-purchaser first to obtain membership-
of the society and the court before confirmation of the sale will insist upon
his membership of the society which, it would not be unreasonable to assume,
will be granted by the Society in the ordinary course unless there are cogent
and relevant reasons for not doing so. The fact that at the time of
auction-sale the purchaser was not a member of the Society would not in law
affect the sale ability or prior attachment of the property in execution of the
valid decree.
The judgment-debtor has a valid decree
against him.
Ordinarily he has to discharge Ms liability
under the decree,.. He can pay the decretal amount straightaway or suffer his
property to be attached: and sold in execution of the decree. As an honest
debtor the liability under the decree has to be discharged. Here the Society is
not-.
objecting to the attachment and sale of the
property, but the judgment debtor is. We have seen there is no absolute
prohibition against transfer of a right to occupation of the flat or even to
transfer a share. The auction-purchaser is presumed to know the limitations
under which he has purchased the right to occupy the flat in court auction. If
ultimately the Society turns down his application for membership. (which of
course cannot be done except for valid reasons) it is upto him to take such
course of action as available under the law. Such a remote contingency, per se,
will not make the particular right of. the judgment-debtor in the flat
non-attachable or non-saleable.
It is contended by Mr. Chatterjee that
section 60, Civil Procedure Code, does not specify that this species of
property is liable to attachment. The argument, however, fails to take note of
section 60 being not exhaustive as such. It refers also to any other saleable
property, movable or immovable, whether the same be held in the name of the
judgment-debtor or by another person on his behalf.
We have held that the right to occupation of
a flat is property both attachable and saleable. Specific non- inclusion of a
particular species of property under section 60 is, therefore, not of any
consequence if it is saleable otherwise. In the result the, judgment of the
High Court is set aside and the judgment-debtor's chamber summons dated March
28, 1972, stands dismissed. The appeal is allowed, but there Will be no order
as to costs 'except that. the court-fees will be payable by, the appellant.
We record our appreciation of the assistance
rendered by Mr. Chatterjee as amicus curiae and also by Mr. Zaiwala, counsel
for the appellant.
V.M.K. Appeal allowed.
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