IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1733 of 2006. NOTICE OF MOTION NO.1733 of 2006. NOTICE OF MOTION NO.1733 of 2006. IN IN IN SUIT NO.1512 of 2006. SUIT NO.1512 of 2006. SUIT NO.1512 of 2006. Kersi S. Contractor ..Plaintiff versus Nozer J. Nicholson & Ors. ..Defendants Mr.B.H.Patel i/b. Dephtary Ferreira & Divan for the Plaintiff Ms.J.M.Sidhwa i/b. Ivor Peter Deruz for Defd. No.1 Ms.Sunita Dandge i/b/D.H/Shah for the Defendant Nos.2 & 3 CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. DATED : 13th January, 2009. DATED : 13th January, 2009. DATED : 13th January, 2009. P.C. 1. Heard learned Counsels on both the sides. The defendant No.1 has submitted to the plaintiff a list of assets as required under clause (a). To that extent prayer clause (a) stands disposed of. Appropriate Order shall be passed hereunder. 2. The Court is informed that Mr.Y.T. Divecha filed Testamentary Petition No.1042 of 2006 to propound the Will of the deceased by name Mr.Noshir Pallonji Nicholson and the said petition is now converted into suit being Suit No.41 of 2007. -2- 3. The learned Counsel for the plaintiff admits that the list of assets as sought in terms of prayer clause (a) was served upon the advocate for the plaintiff in the year May 2006. 4. Since Testamentary Suit No.41 of 2007 is pending, the same will have to be disposed of first. At the same time this suit will have to be tagged along with Suit No.41 of 2007 so that depending upon the result in the said Testamentary Suit, this suit can be taken up for disposal. 5. Considering the fact that the tenanted premises set out in Exhibit A1 are in possession of the defendant No.1, I am inclined to pass an Order of injunction against defendant No.1 restraining him from creating third party rights and or partying with possession to third person or to surrender tenancy till the short time so that the present plaintiff who is defendant in the said Testamentary Suit can institute an appropriate interim relief application to protect his interest. Once the said motion is taken out in the said suit, the court can consider all aspects on merits. -3- 6. So far as items concerned in Exhibit E all are movable properties and since the Will is said to be executed in respect of property of deceased Noshir, the said property is said to be vested in the executrix who has already filed petition for probate. Hence, as to today there is no need to pass Order of injunction with regard to the items mentioned in Exhibit E to the plaint. However, liberty will have to be granted to plaintiff to take out appropriate motion. Keeping in view the aforesaid discussion, I pass the following order: ORDER . Defendant No.1 has furnished the list of assets as sought in prayer clause (a), Hence the motion is disposed of with no order so far as prayer clause (a) is concerned. . In so far as the tenanted premises set out in Exhibit A1, there shall be an Order of injunction restraining the defendant No.1 from creating third party rights and or parting with possession or surrendering the tenancy. This injunction shall run against the defendant No.1 -4- till 27.2.2007. . So far as the items mentioned in Exhibit E, liberty is granted to the plaintiff to take out fresh motion against the Executrix/petitioner to protect his interest in regard to the said assets if necessary. Liberty is already granted to the plaintiff to take out fresh motion with regard to the tenanted premises set out in Exhibit A1. No views are expressed regarding merits of the matter and claims of the rival parties. . Notice of Motion is disposed of in above terms with no order as to costs. . This suit be tagged along with Testamentary Suit NO.41 of 2007. Office to take note accordingly. Both the suits to come up in due course. (R.Y.Ganoo, J.) (R.Y.Ganoo, J.) (R.Y.Ganoo, J.)