IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3997 of 2007 In SUIT NO. 2956 OF 2007 Kirti Saroj Agarwal .. Plaintiff V/s Sajjan Nathmal Agarwal and Ors.. Defendants Mr.Rishab Shah i/b Ms Memani Jhariya for Plaintiff Ms.Jyoti R.Thakkar with R.J.Thakkar for defendant nos. 1 to 3 None for defendant no.4 CORAM : SHRI K.K.TATED,J. DATE : 22nd August 2008. P.C.: 1. Heard. 2. The plaintiff has taken out this Notice of Motion for appointment of Court Receiver in respect of the suit flat no.3, 2nd floor, Building No.4, Atur Park, Shiv Parvati Co Op Hsg Scy, Sion Trombay Road, Chembur, Mumbai 400 070 and also for injunction restraining defendant nos.1 to 3 from creating third party right, title or interest in respect of the said flat. 3. Defendant nos.1 to 3 filed their affidavit in reply on 24-1-2008 opposing prayers in Notice of Motion. Plaintiffs filed their affidavit in rejoinder dated 25-2-2008. 4. It is case of the plaintiff that by agreement of : 2 : sale dated 17-10-1978 the plaintiff jointly with Smt.Bimla N. Agarwal (now deceased) and Nathmal S. Agarwal (now deceased), her mother-in-law and father-in-law respectively purchased a flat being Flat No.3, 2nd floor, Building no.4, Atur Park, Shiv Parvati Co Op Hsg Scy, Sion Trombay Road, Chembur, Mumbai 400 070. It is case of the plaintiff that defendant nos.1 to 3 are in used, occupation and possession of the said flat since beginning. Therefore, the plaintiff filed above mentioned suit claiming 1/3rd share in the subject flat. 5. The Advocate appearing for the defendant nos.1 to 3 filed affidavit dated 22-8-2008 on behalf of defendant no.2 stating that defendant nos.1 to 3 will not crate any third party right, title or interest in respect of the suit property. The said affidavit dated 22-8-2008 is taken on record. 6. In view of the affidavit filed by defendant no.2, Notice of Motion is made absolute in terms of prayer clause (b). The said prayer reads as under :- Prayer "(b)That pending the hearing and final disposal of the present suit, defendant nos.1-3 jointly and/or severally either by themselves : 3 : and/or family members, servants, agents and representatives be restrained by an order of temporary injunction from dealing with and/or disposing with by way of transferring, alienating, encumbering, or otherwise creating any kind of change in respect of the suit being Flat No.3, 2nd floor, Building no.4, Atur Park, Shiv Parvati Co operative Hsg Scy, Sion Trombay Road, Chembur, Mumbai 400 070". 7. As defendant nos.1 to 3 filed affidavit stating that they shall not transfer or create third party right and interest in respect of the suit premises viz. Flat No.3, 2nd floor, Building no.4, Atur Park, Shiv Parvati Co Operative Housing Society, Sion Trombay Road, Chembur, Mumbai 400 070 till hearing and final disposal of the above mentioned suit, there is no question of appointment of Court Receiver under Order XL Rule 2 of Code of Civil Procedure, 1908. Hence prayer clause (a) is rejected. 8. No order as to costs. (K.K. Tated, J)