Page 1

1

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  3785  OF 2016 [Arising out of SLP (Civil) No. 25784 of 2013]

Kusum Harilal Soni .. Appellant

Versus

Chandrika Nandlal Mehta and Anr. .. Respondents

J U D G M E N T

ARUN MISHRA, J.

1. Leave granted.

2. The appellant has questioned the order passed by the High Court of Judicature  

at  Bombay  in  relation  to  Chamber  Summons  No.  1249  of  2009  arising  out  of  

Execution Application No. 318 of 2005 thereby setting aside the attachment of Flat  

No. 408, Saidham Co-operative Society Sodawala Lane, Borivli (West), Mumbai.   

3. The  appellant  had  filed  a  suit  for  eviction  with  respect  to  Flat  No.  F-201,  

Building No.4, Prem Nagar, Mandpesbwar Road, Borivali (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

Page 2

2

with compensation of Rs.8,000/- per month with effect 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 of  

2001 before this Court and obtained an ex-parte stay only on the ground for extension  

of time to vacate.   Later, upon the statement made that possession of the flat was  

handed  over,  the  SLP  was  dismissed  by  this  Court  as  withdrawn.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.  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.   It  was  submitted  that  the  

Memorandum of Understanding 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 entry of ownership 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

Page 3

3

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-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 8.5.2001, 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. 1 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 17.7.2001 to the  

appellant, the amount of compensation from 1984 till 2001 at the rate of Rs.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. 1 from selling the flat  

in  question.    Thereafter  the  SLP  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 21  

Rule 42 CPC for recovery of amount of compensation of Rs.6,48,000/- along with  

interest and for attachment of the flat in question.  On 12.4.2002 the application filed  

by the appellant was allowed.  Respondent no. 1 was restrained from transferring the

Page 4

4

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.8,000/- per month. However, Notice no. 900/06 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.

7. Later  on,  Respondent  no.  2,  daughter  of  respondent  no.  1,  filed  Chamber  

Summon No. 1249/09 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/-.      

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  absolute  on  22.3.2007  without  any  objection  filed  by  Judgment  

debtor.    

9. The High Court by the impugned order has allowed the objection 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 made in  

collusion  with  respect  to  MOU  dated  11.6.1995  and  agreement  dated  26.6.2001

Page 5

5

afresh.   The  documents  filed  by  respondent  no.  2  have  been  relied  upon.   The  

attachment has been 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, Mandpesbwar Road,  

Borivali (West), Mumbai occupied by the respondent no. 1 as licensee  was ordered to  

be vacated 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 Court, 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 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 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 of herself and her   

daughter in joint names.   She has not stated that any such MOU had been entered into  

between 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

Page 6

6

compensation,  the deed dated 26.6.2001 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 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  

appellant against respondent no. 1 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 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 of flat in question along with  

injunction upon respondent no. 1 from selling the flat.   This notice attained finality as  

respondent  no.  1  failed  to  submit  any reply  to  the  notice.   The  notice  was  made  

absolute by the High 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 26.6.2001 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 question had been attached, respondent no. 2 has taken the  

chamber summons in question on the basis of which the impugned release order was

Page 7

7

passed by the High Court.   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.   The order  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 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. 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.  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 get the  

attachment cancelled by setting up false documents in favour of respondent no. 2 on  

the basis of MOU and the unregistered 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  

Page 8

8

in  question  as  it  has  rightly  been  attached  in  the  execution  proceedings.    The  

impugned order is accordingly set aside and the appeal is allowed.

           ………………………J.            (V. Gopala Gowda)

New Delhi;             ………………………J. April 12, 2016.             (Arun Mishra)