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17. The Division Bench of this court in Union of India v. Mittersain Rupchand and Ors., 1995(2) Mh.L.J. 481 was concerned with the question as to whether the tenancy rights and the goodwill of the running concern can be attached in execution under Order 20, Rule 54 of Civil Procedure Code. That was the case where in the execution application filed by the decree holder seeking execution of the money decree, the executing court levied attachment of goodwill and tenancy rights of non-residential premises that were in possession of the judgment-debtor on lease. The judgment-debtor took out chamber summons for raising the attachment on the ground that Section 15 of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (For short "Bombay Rent Act") prevented creation of any sub-tenancy or assignment or transfer in any manner of the interest of a tenant. The trial Judge of this court by his judgment, raised the attachment holding that as the transfer of tenancy rights was prohibited by law, the same could not be attached. Reversing the view of the learned trial Judge of this court, the Division Bench held that there was no bar whatsoever under Sub-section (1) of Section 15 to attach and sell the leasehold interest of a lessee in the premises leased out for non-residential purpose. The Division Bench referred to the judgment of the Supreme Court in the case of Ramesh Himmatlal Shah and also the Division Bench of this court in Zarina Umer Chamdewala v. Sati Lalchand Verumal Lalwani, BLR Vol. LXXI 1969 page 801 and held thus :--

28. The legal position reiterated in Golak Nath Roy Chowdhary and Keshab Chandra Pramanik with regard to a general restriction imposed in the lease deed on assignment of tenancy interest by the lessee that such general restriction on assignment does not apply to an assignment by operation of law taking effect in invitum, as a sale under an execution, is applicable equally to a general restriction in law on assignment of tenancy interest by the tenant and we hold so.

We clarify however that by what we have said about Court sales, we do not intend affecting the rights of the landlord under the 1999 Act. In Veetrag Investments II, 2003(1) Mh.L.J. 458 = 2003(1) All MR 493, it was held that though the rights of the tenant are liable to be attached and sold in execution of a decree, the same cannot affect the rights of the landlords/head tenants in any manner for the right of a tenant under Section 56 of 1999 Act can only be exercised with the consent of the landlord and that in execution of a decree against the tenant/sub-tenant, the Court cannot force in unwilling landlord/head tenant to enter into such a agreement. We however keep this question open to be decided by the executing Court at the appropriate stage.

33. The aforesaid provision leaves no manner of doubt that it enables the tenant to claim or receive any sum or any consideration, as a condition of the relinquishment, transfer of assignment of his tenancy of any premises. It indicates that the tenant has a disposing power in respect of the interest in the tenancy in the non-residential premises for his own benefit either by surrendering it to the landlord for any sum or consideration or transfer or assign the tenancy for consideration. Clause (kc) appended to the proviso of Sub-section (1) of Section 60 prohibits the attachment and sale of interest of the lessee of a residential building to which the Rent Control Act applies but the said prohibition is not applicable to the interest of a tenant of a non-residential premises to which the Maharashtra Rent Control Act applies and therefore, it can safely be held that the interest of the tenant in the non-residential premises to which the Act of 1999 applies is attachable and saleable in execution of the decree against the tenant.

35. There may be a case where the tenant does not transfer or assign his tenancy rights but only surrenders his tenancy to the landlord. Section 26 does not come in the picture in that case. For the surrender of his tenancy, the tenant may receive money as there is no prohibition and Section 56 of the Act of 1999 legalises that. Yet another case where the tenant transfers or assigns his tenancy rights in non-residential premises to the third party on consideration for transfer or assignment. The landlord ratifies the act of transfer or assignment and also accepts money for grant of such permission to transfer. There may also be a case where the landlord purchases in public auction the interest of the tenant in execution with a view to get back his property without undertaking exercise of eviction. The cases may be many. Can it be said that interest of the tenant in the non-residential premises is not saleable or that the tenant has no disposing power in respect of such interest for his benefit. The answer obviously has to be in the negative.