1. This is an appeal under S. 47 of the Code of Civil Procedure at the instance of original opponent No. 1 the judgment-debtor. Respondent No. 1. Herein obtained a decree in Sum the file of for Rupees 12,991/- and interest thereon against the present appellant. Respondent No. 1 herein applied for execution of the said decree by seeking to attach the part of the plot No. 14 belonging to the judgment-debtor the appellant herein and situated within Hindu Colony Co-operative Housing Society Limited. The appellant raised certain objections against the execution contending, inter alias, that the plot of land or a portion of it is not liable to be attached as he has no right or interest in the said plot of land which in fact and law belonged to the Co-operative Society and it was merely allotted to a member by the Society and, therefore, he had no saleable interest whatsoever therein. The appellant also contended that in any case the, part of the plot of the land sought to be attached was transferred by him to his wife by way of gift and. therefore, also the property in question was not liable to be attached and sold in execution of the decree.
2. So far as the first contention was concerned, the Executing Court accepted the contention of the judgment-debtor that he was merely an allotted of the plot of land from the Co-operative Society concerned and that the allotment be a Society to a member does not amount to a transfer and does not create any interest in the Plot of land in favour of the member concerned. However, in the opinion of the Executing Court, the plot of land directly represented the judgment-debtor's contribution in the Society towards the land purchase account and, therefore, what was really attached was not the piece of land but corresponding contribution of the judgment-debtor in the land purchase account of the Society which is admittedly the property of the judgment-debtor.
3. The second contention about the gift to the wife by the, judgment-debtor was not seriously pressed before the Executing Court. The learned City Civil Judge, therefore, passed the following order:
'In the result, I dismiss all the objections raised by Mr. K. B. Bhatt for the judgment debtor and direct that the third party co-operative housing society will proceed to sell the property attached and ordered to be sold at Ex. 16 of the aforesaid Misc. Civil Application No. 566 of 1971 and act as directed in that order.'
This order of the Executing Court of December 12, 1974 is the subject matter of this first appeal.
4. At the time of hearing of this appeal, Mrs. K. A. Mehta, learned Advocate, appearing for the judgment-debtor who is appellant before me, urged that the judgment-debtor who is an allottee-member of the Co-operative Society concerned has no right or interest in the plot of land allotted to him by the Society and, therefore, the Executing Court was in error in directing the sale of the plot of land sought to be attached by respondent No.1 who is a judgment creditor. In submission of Mrs. Mehta, on true construction of the relevant Bye-laws of the Society concerned, there is no saleable interest in the plot of land allotted to a member and, therefore, the order directing the sale of the plot of the land must be set aside.
5. I am of the opinion that there is not much substance in the contentions advanced on behalf of the appellant. In Ramesh Himmatlal Shah v. Harsukh Jadhavji Joshi, AIR 1975 SC 1470, a similar point arose before the Supreme Court, namely, whether the right of the judgment-debtor who claimed the right of occupation of flat No.9 belonging to one Paresh Co-operative Housing Society Limited at Santacruz, Bombay, was liable to attachment and sell in execution of a decree. The Supreme Court considered the scheme of the Maharashtra Co-operative Societies Act, 1960 and the Bye-laws of the Paresh Co-operative Housing Society Limited in details and Mr. Justice Goswami, speaking for the Court specifically referred to Ss. 29 and 31 & 47 of the said Act and observed in paragraphs 17 and 18 as under:
'17. From a review of the foregoing provisions the position with reference to the particular Society is as follows:
There is no absolute prohibition in the Act or in the Rules or in the Byelaws against transfer of interest of a member in the property belonging to the Society. The only transfer which is void under the Act is one made in contravention of sub-s. (2) of S. 47 (see S. 47(3) ). We, have not been able to find any other provision anywhere to the same effect. In the scheme of the provisions a dichotomy is seen between share or interest in the capital and interest in property of the Society. While S. 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 member 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. We have also noticed that the Act does recognise interest in the immovable property of the Society as well (see S. 47(1)(b) ). We have seen the qualifications for membership. There is no reason to suppose that if the qualifications under the Bye-laws are fulfilled an application for membership may be, rejected. It is admitted that the flat is owned by the Society and the judgment-debtor has a right or interest to occupy the same. 18. This right or interest to occupy is a species of property. We have to consider whether this right to the particular property is attachable and saleable in execution of the decree against the judgment-debtor. It is contended by Mr. Chatterjee, amicus curiae, that S. 31 of the Act completely bars attachment and sale of the said property in execution of the decree. We have already pointed out the difference in language between Section 29 and S. 31 and also made reference to S. 47(1)(b) in that connection. 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. There is nothing in S. 31 to even remotely include a prohibition against attachment or sale of the aforesaid right to occupation of the flat. Once S. 31 is out of the way, we are left with S. 29 wherein we do not find even a provision of prior consent for transfer of share or interest in such property. The only restrictions under S. 29(2) are that the member may not transfer his interest in the property prior to one year and the transfer is made to an existing member of the Society or to a person whose application for membership has been accepted by the Society. It is true that bye-law 71D says that a member to whom a tenement is allotted shall not assign or underlet, vacate or part with the possession of the tenement or any part thereof without the previous consent in writing of the Managing Committee, but there is nothing to show that contravention of this bye-law makes the assignment void under the Act unlike in the case of a transfer being void under S. 47(3). There is no impediment to ratification of the assignment by the Committee particularly in view of the local position arising out of the conjoint effect of S. 29 We, therefore, unhesitatingly come to the conclusion that this species of property, namely the right to occupy a flat of this type, assumes significant importance and acquires under the law a stamp of transferability in furtherance of the interest of commerce. We have seen no fetter under any of the local provisions against such a conclusion. The attachment and the sale of the property in this case in execution of the decree are valid under the law.'
6. Now, it is common ground that Ss. 30, 32 and 48 of the Gujarat Cooperative Societies Act, 1961 are in pari material with Ss. 29, 31 and 47 of the Maharashtra Co-operative Societies Act, 1960. So far as the Bye-laws of the present Society with which I am concerned in this appeal are concerned, they are in more wide terms than the provisions contained in the Bye-laws of Paresh Cooperative Housing Society Limited with which the Supreme Court was concerned in the case of Ramesh Himmatlal Shah v. Harsukh Jadhavji Joshi (AIR 1975 SC I470) (supra). The terms and conditions on which the Society may permit the members to occupy the buildings built by it and the terms and conditions on which a Society may make outright sale of those buildings are as described in details in Forms A and B appended to the Bye-laws. Clause 2A of Form 'B' indicates clearly that the property of the Society is capable of being transferred at the instance of the member by transfer of shares held by him and the transferee of such shares acquires the right, title and interest of the transfer or in the said property on such transfer of shares being permitted by the Society. Clause 3 of form 'B' also indicates that the member of the society has an option to construct the building of his own according to the plans approved lay the Society. Clause 6A of form 'B' prescribes the consequences and entails obligation of paying 50 per cent of the premium to the Society on the sale of the property of the society at the instance of the member. The contention of Mrs. Mehta on behalf of the appellant therefore cannot be accepted and in view of the clear provisions made in Cls. 2A, 3 and 6A of form 'B' containing the terms and conditions, it cannot be gainsaid that the member has not only the right, title and interest in the plot of the land allotted to him by the society or in the building built and allotted by the Society to the member, but those rights were transferable and heritable. Mrs. Mehta was fair enough to concede that the judgment-debtor in the present case has the right or interest to occupy the building which may be built by the Society and in view of the decision of the Supreme Court in Ramesh Himmatlal Shah's case (supra) it is the species of property which is transferable and, therefore-, liable to attachment. Her contention, however, was that till the building is built and allotted and possession is given to a member, he does not acquire any interest in the property of the Society. I am afraid, this is too wide a submission which can be sustained in view of the provisions contained in the Gujarat Co-operative Societies Act read with the Bye-laws of the Hindu Colony Co-operative Housing Society Limited with which I am concerned in this appeal. Mrs. Mehta was, however, right when she made a grievance that the view of the Executing Court that the plot of land which is attached in the present execution represented the judgment-debtor's contribution in the Society towards the land purchase account is not correct, because, as observed by the Supreme Court in Ramesh Himmatlal Shah's case (supra) there is a clear dichotomy made by the Mahrashtra Cooperative Societies Act between the right or interest of a member in the property and the right or interest in the capital of the Society. These are two different concepts the distinction between which should not be lost sight of.
7. The order which has been made by the learned City Civil Judge requires to be modified. The learned City Civil Judge has directed the Society to sell the property which has been attached according to the instructions given by him at Ex. 16 on the record of the Dar- The proper order which could have been made by the Executing Court should be that whatever right, title and interest the judgment-debtor had in the plot of land allotted to him by the Society should be put to sale by auction. Subject to this modification the directions given by the learned City Civil Judge as to how the sale is to be affected and as to the deposit to be made of the sale proceeds are confirmed.
8. In the result, this appeal is partially allowed subject to the modification indicated above. Having regard to the facts of this case, there should be no order as to costs.
9. Appeal partly allowed.