AGK IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION APPEAL APPEAL APPEAL FROM ORDER NO.103 OF 2008 FROM ORDER NO.103 OF 2008 FROM ORDER NO.103 OF 2008 Smt Shardaben wd/o Hiralal Jaiswal ...Appellant Versus. Shri Rohit Hiralal Jaiswal & Ors. ...Respondents Mr Uday Shankar Samudrala for Appellant. Mr Snehal Shah i/by M/s.Narayanan & Narayanan for Respondent Nos.6 to 9. CORAM CORAM CORAM : S.J.VAZIFDAR, J. : S.J.VAZIFDAR, J. : S.J.VAZIFDAR, J. DATE DATE DATE : 22nd April, 2008. : 22nd April, 2008. : 22nd April, 2008. P.C.: P.C.: P.C.: 1. The learned advocate on behalf of the appellant states that he will file affidavit of service within one week from today. The impugned order disposes of a Chamber Summons No.1180 of 2006 and the Notice of Motion taken out by the plaintiff. 2. By the Chamber Summons the plaintiffs sought to implead respondent Nos.5 to 9 as the defendants to the suit. In the Notice of Motion the appellant/plaintiff inter-alia sought to have an order dated 17th July, 2006 permitting the withdrawal of her suit set aside. 3. It was contended by the appellant that she had never signed the Power of Attorney pursuant to which her alleged constituted attorney sought to withdraw the suit. The learned Judge has observed that this question cannot be gone into in the Notice of Motion. : 2 : 2 : 2 : 4. Although I am unable to agree with this basis for rejecting the relief, no useful purpose will be served by remanding the matter. The suit is filed only for a declaration that the contemplated action of the defendants to dispose of the suit property is bad in law and not binding in law and for an injunction restraining them from attempting to deal with dispose of the suit property etc. 5. The plaintiff was aware of the fact that third party rights had been sought to have been created. Despite that no attempts were made to implead the third party. The suit no longer survives in as much as it is now not merely a contemplated action but a fact that the defendants have disposed of the property. 6. It is necessary for the plaintiff to file independent proceedings challenging the purported sale of the suit property to the third parties. Such a suit would not be barred under any provision of law. Mr Shah also fairly admitted that even if the suit is not allowed to be restored to the file a suit to challenge the purported creation of rights in favour of third parties including respondent Nos.6 to 9 will not be barred. : 3 : 3 : 3 : 7. With the above clarification the Appeal from Order is disposed of. It is made clear that the rights and contentions of the parties are kept open and have not been decided by this Court. Mr. Shah on behalf of respondent Nos.6 to 9 states that his clients will maintain status-quo in respect of the suit property in all respects upto and inclusive of 05th June, 2008. The statement is accepted.