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Union Bank Of India vs M/S. Mittersain Rupchand And Others on 20 March, 1995 cites

Ramesh Himmatlal Shah vs Harsukh Jadhavji Joshi on 25 April, 1975

5. The Supreme Court examined the ambit of Section 60 of Code of Civil Procedure in its judgment in the case of Ramesh Himmatlal Shah v. Harsukh Jadhavji Joshi, . In the case before the Supreme Court, the decree-holder obtained a money decree and took out a warrant of attachment of flat No. 9 of Paresh Co-operative Housing Society Ltd. at Santacruz, Bombay. The attachment was not raised by the City Civil Court but in appeal the learned single Judge of this Court raised the attachment on the ground that the sale of flat being illegal. Letters Patent appeal preferred by the decree-holder ended in dismissal and the question which fell for determination before the Supreme Court was attachability and saleability of the flat. It was contended before the Supreme Court that the provisions of Maharashtra Co-operative Societies Act, 1960 and the Rules framed thereunder and the Bye-laws of the Society prohibits transfer of a flat by the member and consequently the flat was not liable to attachment and sale. The Supreme Court noticed provisions of Sec. 29 of Co-operative Act which inter alia provides that a member shall not transfer any share held or interest in the capital of property of the society unless the transfer is made to a member of the society or to a person whose application for membership has been accepted. Section 31 of the Act then provides that the share or interest of the member in the capital of the society or in the loan-stock issued by housing society or the funds raised by the society from its member by way of savings shall not be liable for attachment or sale under any decree or order of the Court. Section 47 then provides that the society shall have first charge upon the interest of the member in the immovable property for any outstanding dues or dues payable by the society. Sub-section (2) of Section 47 provides that no property or interest in the property which is subject to a charge shall be transferred in any manner without the previous permission of the society. Sub-section (3) of Sec. 47 then provides that any transfer made in contravention of sub-sec. (2) shall be void. On consideration of these provisions, the Supreme Court observed that the right or interest to occupy is a species of property and this right is attachable and saleable in execution of the decree against the judgment-debtor. It was held that 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. It was further observed that there is nothing in Section 31 to even remotely include the prohibition against attachment or sale of the right to occupation of the flat. The Supreme Court noticed that as there was no impediment in assignment of the flat, it is obvious that the judgment-debtor had saleable interest and a disposing power while holding possession of flat as a member of the co-operative society. The Supreme Court then observed (at p. 1476):
Supreme Court of India Cites 38 - Cited by 49 - P K Goswami - Full Document
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