LexRAMESH HIMMATLAL SHAH versus HARSUKH JADHAVJI JOSHI
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270 ,. - ' A . RAMESH HIMMATLAL SHAH v. HARSUKH.JADHAVJI JOSHI April 25, 1975. B [A. ALAGIRISWAMI, P. N. B!IAGWATI AND P. K. GOSWAMI, JJ.] c D E F G ll Maharashtra Co-operative Societies Act1 1960 Sections 29,31,47 and i46(a), 1961, Rule 24 and Bye-Laws 9 and 71-D right of a judgn1e11J-dcbtor to occupy a fiat owned by a housir..g society, if fiablc to attac/unent and su!e ill execution of a decree against hin1. Code of Ciril Procedure, Section 60-Riglit to occupy a fiat owr,ed /Jy a ca-operari11e housing society, 1.'f a species of property. The appellant is the decree-holder. He obtained a money decree agains1 the respondent judgment-debtor and took a warrant of attachment of fiat 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 wh.ile be was in jail in Rajkot. In due Cot,_rse -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 on the· ground that the fiat 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 surnmons was made absolute but in appeal the order was set aside and the matter was remanded. The afore!faid chamber sumn1ons 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 se\;ure an order for injunc- tion to prevent the eXecutic,n of the decree and the suit __ is pending. The flut was offered for sale and was purchased i,n auction· hy One Bhupendra N. Shah for a sum of Rs. 34,000 / ··. The sale, however, is not yet confirm~d. Subse- quently a new plea was taken by the judgment--debtoc. This time he filed a chamber summons on March 28, 1972, praying for the dismissal of the execution petition filed by the decree-holder 3Dd for setting aside the w41-r~int of attachment and proclamation of sale on the ground that the flat being a fiat 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, Bo1nbay High Court, however, in appeal allowed the claim and made the summons absolute by directing that the attachment and sale of the flat being Hlegal be set aside. The appellant preferred a Letters Patent Appeal before the Bombay High Court without success and the decision cif the learned single Judge was affirn1ed. 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 atta.chn1ent and sale in execution of a decree. The respondent contended that section 31 of the ~Iaharashtra Co-operative Societies Act, 1960, completely bars attachment and saJe of the flat in question in execution of thl! decree. lt \Vas also con- tended for the respondent that section 60, Civil Procedure Code does not specify that this species of property is liable to attachment. ' A11owing the appeal, HEW : (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 men1ber 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, [2780-E] (ii) The right or interest to occupy is a species of property. There is ) R. H. SHAH "· H. J, JOSHI (Goswumi, J.) 271:' nothing in the language of section 31 lo indie<1te that the right to ocoupation J.. wbich is the right to be sold in auction is not attachable in executio11 of the decree, There is nothing in section 31 to even l'emotely inclQde a prohibi- tion against attachment or. sale of the aforesaid right to occupation 'of the fiats. The o,i;tly restrictions under section 29(2) are that t
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