KUSUM HARILAL SONIversusCHANDRLKA NANDLAL MEHTA AND ANR.

                        [2016] 2 S.C.R. 389



                    KUSUM HARILAL SONI                                  A
                                 v.

         CHANDRlKA NANDLAL MEHTA AND ANR.
                  (Civil Appeal No. 3785 of2016)
                          APRlL 12, 2016                                B

      [V. GOPALA GOWDA AND ARUN MISHRA, JJ.]
       Code of Civil Procedure, 1908 - Or.21, rr. 41 and 42 -
Execution of Decree - Eviction proceedings u/s. 13A(2) of Bombay
Rent Act, 1947 - Decree in favour of landlord - Directing eviction
of premises and compensation to Landlord - Tenant gave possession
                                                                        c
of tenanted premises, but amount of compensation not paid -
Application u!Or. XX! n: 41 and 42 by Landlord/decree-holder for
warrant of recovery of compensation and for attachment of property
of the judgment-debtor a/ongwith injunction on judgment-debtor
from selling the property - Application allowed - Notice u!Or. XX!      D
r. 22 filed - High Court made the notice absolute - Thereafter
warrant of attachment of property was issued by High Court -
Thereafter daughter of judgment-debtor filed Chamber Summon for
setting aside the attachment on the ground that the judgment-debtor
had sold the property to her by MOU dated 11.06.1995 and an
                                                                        E
unregistered agreement dated 26.06.2001 - High Court set aside
the attachment - On appeal, held: The facts of the case indicate
that MOU and the agreement were set up by the judgment-debtor in
 order to delay and frustrate the execution proceedings - Mother
 and daughter had illegally attempted to get the attachment cancelled
 by setting up false documents - Property in question was rightly       F
 attached in execution proceedings.
      Allowing the appeal, the Court
      HELD: The order for eviction and compensation was
passed way back on 6.12.2000 by the competent authority, which
has attained finality up to this Court. Respondent No. 1 had stated     G
that in the year 2000 the flat in question was in the name of herself
and her daughter in joint names. She has not stated that any
such MOU bad been entered into between mother and daughter.
The nature of MOU indicates that even after marriage of
daughter, when site ceases to be in possession of flat in question,     H
                                389
390             SUPREME COURT REPORTS                       [2016] 2 S.C.R.


A     the mother, judgment-debtor will remain in possession. MOU
      casts a duty upon respondent No. 2 to look after and maintain the
      vendor and her family even after her marriage and ceases to stay
      in the flat in question with the vendor. Such an understanding by
      the married daughter by itself falsifies the documents and indicates
      that a dubious transaction had been entered into between
B
      respondent Nos. 1 and 2 to illegally defeat the order of payment
      of compensation. Thus it is clear that daughter has been set upon
      false pretext to obstruct execution of order dated 6.12.2000. The
      statement of the judgment-debtor also falsifies MOU and the
      subsequent unregistered documents cannot be said to be bo11a
 C    fide. The facts indicate that the MOU and the agreement had
      been set up by respondent No. 1 in order to delay and frustrate
      the eviction order and payment of compensation. It was clearly
      collusive and in order to defeat the execution proceedings. The
      mother and daughter had illegally attempted to get the attachment
      cancelled by setting up false documents in favour of respondent
 0
      No. 2 on the basis of MOU and the unregistered agreement which
      had not seen the light of the day for several years. [Para 10) (393-
      F; 394-E-H; 395-A]
           CIVIL APPELLATE JURJSDICTION: Civil Appeal No. 3785
      of2016.
 E
            From the Judgment and Order dated 14.06.2013 of the High Court
      of Judicature at Bombay in Chamber Summons No. 1249 of 2009 in
      Execution Application No. 318 of2005 in Application Case No. 13 of
      1996]
 F          Sushi! Karanjkar, K. N. Rai, Advs., for the Appellant.
            P. N. Gupta, Ms. Bharti Gupta, Advs., for the Respondents.
            The Judgment of the Court was delivered by
            ARUN MISHRA, J. I. Leave granted.
 G           2. The appellant has questioned the order passed by the High
      Court of Judicature at Bombay in relation to Chamber Summons No.
      1249 of2009 arising out of Execution Application No. 3 I 8 of2005 thereby
      setting aside the attachment of Flat No. 408, Saidham Co-operative
      Society Sodawala Lane, Borivli (West), Mumbai.
 H          3. The appellant had filed a suit for eviction with respect to Flat
KUSUM HARILAL SONI v. CHANDRIKA NANDLAL MEHTA 391
               rARUN MISHRA, J.l

No. F-201, Building No.4, Prem Nagar, Mandpesbwar Road, Borivali            A
(West), Mumbai against respondent no. 1 as license had expired on
1.11. 1994. Thereafter the premises were not vacated, nor the
compensation was paid. The competent authority passed an order
directing the respondent no. 1 to handover vacant possession to the
appellant along with compensation ofRs.8,000/- per month with effect
                                                                            B
from 1.11.1994 till the date of handing over the possession. Against the
order of the competent authority, Respondent no. 1 filed CRA no. 678 of
2001 before the High Court which was dismissed. Thereafter respondent
no. 2 filed a Special Leave Petition no. 7022 of2001 before this Court
and obtained an ex-parte stay only on the ground for extension of time to
vacate. Later, upon the statement madethat possession of the flat was       c
handed over, the SLP was dismissed by this Court as withdrawn. Though
the possession was handed over on 17. 7.2001 to the Appellant, the amount
of compensation was not paid. Thereafter, an application under Order
21 Rules 41 and 42 of the Code of Civil Procedure was filed by the
Appellant restraining respondent no. 1 from transferring the flat No.
                                                                            D
408, Saidham Co-operative Society Sodawala Lane, Borivli (West),
Mumbai to respondent no. 2. However, in order to defeat and frustrate
the decree with respect to the compensation, respondent no. 1 transferred
the flat in question to respondent no.2 by an unregistered agreement
deed dated 26.6.2001 which is neither properly stamped nor duly
registered. 1t was submitted that the Memorandum of Understanding           E
dated 11.6.1995 and agreement dated 26.6.2001 are sham and had been
set up after passing of the order for possession and compensation by the
respondents to defeat the execution of the order.
      4. The appellant had submitted that on 1.10.1987 respondent no.
1, Smt. Chandrika Nandlal Mehta came to be the owner of the flat and        F
entry ofownership was transferred in her favour on 23.2.1995. As the
licence agreement had expired with respect to the vacation of flat No.
F-201, Building No.4, Prem Nagar, Mandpesbwar Road, Borivali (West),
Mumbai, eviction proceedings had been initiated under section 13A(2)
of the Bombay Rent Act, 1947, in which respondent no. 1 made a
statement that there was another flat being Flat No. 408 Saidham Co-        G
operative Society Sodawala Lane, Borivli (West), Mumbai which was
purchased in the name of herself and her daughter Chetana. The
competent authority had passed the eviction order on 6.12.2000. The
appeal had been rejected by the High Court against the order of the
competent authority for eviction and compensation on 10.4.2001. On          H
392             SUPREME COURT REPORTS                        [2016] 2 S.C.R.


A     8,S.2001, in the SLP preferred by respondent no. 1, an interim ex-parte
      stay order was granted by this Court. Thereafter on 26.6.2001, in order
      to defeat the order of eviction and payment of compensation, respondent
      no. i had entered into so-called agreement which is an unregistered
      document in favour of her daughter in the shape of transfer deed.
      However, possession of the licensed premises was handed over on
B
       17.7.2001 to the appellant, the amount of compensation from 1984 till
      2001 atthe rate ofRs.8,000/- per month was not paid.
             5. On 20.12.2001, the appellant filed an application before the
      competent authority for recovery of possession and injunction upon
      respondent no. I from selling the flat in question. Thereafter the SLP
 c    was dismissed on 18.3.2002 as having been withdrawn by respondent
      no. 1.
            6. On 10.4.2002, the appellant filed a miscellaneous application
      under Order 2 J Rule 42 CPC for recovery of amount of compensation
      of Rs.6,48,000/- along with interest and for attachment of the flat in
 D    question. On 12.4.2002 the application filed by the appellant was allowed.
      Respondent no. 1 was restrained from transferring the suit property.
      On 5.6.2002 the application filed by the appellant under Order 21 Rule
      42 was allowed and respondent no. 1 was directed to pay arrears of
      monthly license fee@ Rs.8,000t- per month. However, Notice no. 900/
 E    06 was filed by the appellant under Order 21 Rule 22 CPC before the
      High Court for proceeding with the execution. On 22.3 .2007 the High
      Court passed an order making the notice absolute.           Thereafter on
      2.2.2009 warrant of attachment of movable property was issued by the
      High Court in the execution.
 F           7. Lateran, Respondent no. 2, daughter ofrespondent no. 1, filed
      Chamber Summon No. J 249/09 for setting aside the attachment of the
      suit flat and moveables therein by contending that by Memo of
      Understanding (for short the MOU) dated 11.6.1995 and an unregistered
      agreement dated 26.6.2001 respondent no. 1 had sold the flat in question
      to respondent no. 2 for a sum of Rs.4,25,000/-.
 G
            8. A reply was filed by the appellant on 12.3.2011 and the chamber
      summons was opposed on the ground that a fraud being played on the
      Court. It was contended in the reply that the chamber summons was
      based on fraudulent and mala fide intention and the mother and daughter
      had acted in collusion. The High Court had already made the notice
 H    absolute on 22.3.2007 without any objection filed by Judgment debtor.
KUSUM HARILAL SONI v. CHANDRIKA NANDLAL MEHTA 393
               [ARUN MISHRA, J.]

       9. The High Court by the impugned order has allowed the objection        A
of respondent no. 2. Liberty has been given to the appellant to initiate
proper proceedings in accordance with law to get the declaration and
proving the averments so m·ade in collusion with respect to MOU dated
11.6.1995 and agreement dated 26.6.200 I afresh. The documents filed
by respondent no. 2 have been relied upon. The attachment has been
                                                                                B
set aside. Hence, the present appeal.
        10. We have heard the learned counsel for the parties at length.
The flat in question was transferred in the name of respondent no. 1 on
1.10.1987. Thereafter, the different premises Flat No. F-201, Building
No.4, Prem Nagar, Mindpesbwar Road, Borivali (West), Mumbai
occupied by the respondent no. 1 as licensee was ordered to be vacated
                                                                                c
by the competent authority on 6.12.2000. Though the possession had
been handed over on 17.7.2001 after rejection of the appeal by the High
Court and filing of the SLP in this Comt, it is clear that in order to defeat
the execution order for payment of compensation, an unregistered
agreement has been entered into on 26.6.2001 between mother and the             D
daughter on the basis of so-called MOU dated 11.6.1995, which indicates
that respondent no. 2 was unmarried at the relevant time. It was
mentioned in Clause 3 of the MOU that the purchaser i.e. respondent
no. 2 had agreed to look after and ·maintain the vendor and her family
even after her marriage and she ceased to stay in the flat with the vendor.
A sum of Rs.1,14,000/- is purported to have to been received from               E
unmarried daughter by respondent no. 1. This MOU had not been set
up by respondent no. 1 while she made the statement before the
competent authority in the pending eviction proceedings in 2000.
 Respondent no. 1 had stated that in the year 2000 the flat in question
was in the name ofherselfand her daughter in joint names. She has not           F
stated that any such MOU had been entered into b.etween mother and
daughter and once the order for eviction and compensation had attained
finality, it is apparent that in order to frustrate the order for payment of
compensation, the deed dated 26.6.200 I had been set up which is not a
 registered document. Though it was mentioned in the document that the
 stamp and registration charges shall be paid by the transferee, it was not ·   G
 the document executed by the Co-operative Society. This Court had
 issued a notice in the SLP on .8.5.2001 only on the question of grant of
 reasonable time for vacating the premises. It is also to be noted that the
 miscellaneous application was filed under Order 21 Rule 42 CPC by the
                                                                                H
394            SUPREME COURT REPORTS                        [2016) 2 S.C.R.


A appellant against respondent no. I restraining her from selling/transferring/
  disposing of the flat in question, so that the order dated 6.12.2000 with
  respect to compensation passed by the competent authority may be
  executed. On 17.7.2001 the possession had been handed over to the
  appellant. Miscellaneous application dated 10.4.2001 was filed by the
  decree holder under Order 21 Rule 42 CPC for issuance of warrant for
B
  recovery of the compensation and arrears of license fee in the sum of
  Rs.6,48,000/- along with interest@ 9% per annum and for attachment
  offlat in question along with i1tjunction upon respondent no. I from selling
  the flat. This notice attained finality as respondent no. I failed to submit
  any reply to the notice. The notice was made absolute by the High
c Court vide order dated 22.3 .2007. The warrant of attachment was issued
  on 2.2.2009 and the flat in question has been attached. The judgment
  debtor has failed to indicate that the MOU dated 11.6.1995 and the
  unregistered agreement dated 26.6.200 I at the time when notice was
  issued and made absolute and execution was ordered to be prosecuted
  with. It was only after the notice was made absolute and the flat in
D
  question had been attached, respondent no. 2 has taken the chamber
  summons in question on the basis of which the impugned release order
  was passed by the High Court. The facts indicate that the MOU and
  the agreement had been set up by respondent no. I in order to delay and
  frustrate the eviction order and payment of compensation. The order
E was passed way back on 6.12.2000 by the competent authority, which
  has attained finality up to this Court. The nature of MOU indicates that
  even after marriage of daughter, when she ceases to be in possession of
  flat in question, the mother, judgment-debtor will remain in possession.
  MOU casts a duty upon respondent no. 2 to look after and maintain the
  vendor and her family even after her marriage and ceases to stay in the
F
  flat in question with the vendor. Such an understanding by the married
  daughter by itself falsifies the documents and indicates that a dubious
  transaction had been entered into between ·respondent nos. I and 2 to
  illegally defeat the order of payment of compensation. Thus it is clear
  that daughter has been set upon false pretext to obstruct execution of
G order dated 6.12.2000. As per MOU, the Judgment-debtor herself
  continues to be in possession. The statement of the judgment-debtor
  also falsifies MOU and the subsequent unregistered documents cannot
  be said to be bona fide. It was clearly collusive and in order to defeat
  the execution proceedings. The mother and daughter had illegally
  attempted to getthe attachment cancelled by setting up false documents
H
KUSUM HARILAL SONI v. CHANDRIKA NANDLAL MEHTA 395
               [ARUN MISHRA, J.]

in favour of respondent no. 2 on the basis of MOU and the unregistered      A
agreement which had not seen the light of the day for several years ..
       11. Thus, the High Court has erred in law in setting aside the
attachment. The impugned order and the chamber summons are liable
to be set aside. The appellant is free to carry out the execution and to
realize the amount of compensation from the flat in question as it has      B
rightly been attached in the execution proceedings. The impugned order
is accordingly set aside and the appeal is allowed.
Kalpana K. Tripathy                                       Appeal allowed.