1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.763 OF 2009 IN NOTICE OF MOTION NO.299 OF 2009 IN LONG CAUSE SUIT NO.739 OF 2009 Shri Hiramani Lokmani Barthwal (Sharma) & Ors. ..Appellants V/s Municipal Corporation of Gr.Mumbai & Ors. ..Respondents ---- Mr. G.S.Godbole i/by M/s.Ashoka Law Firm for the appellants. Mrs.K.K.Soraan for the BMC. Mr.H.T.Pawar for respondent no.3. ---- Coram : R.S.MOHITE,J Date : 17th September, 2009. PC 1 Heard both sides. This appeal is filed by the occupant and the relief sought is to permit him to carry out tenantable repairs as specified in the prayer of the Notice of Motion. It is the case of the appellant that the original defendant no.3 has no locus and is not the owner in respect of the property as the Court Receiver has executed conveyance in favour of Mr.Manohar Gavli. According to the Advocate for the defendant no.3, he does not accept the conveyance and has challenged the same by filing the suit on the original side of the High Court. Be that as it may, if the plaintiff seeks the relief of effecting tenantable repairs then he must implead the person whom he admits to be the landlord and no such 2 orders can be passed unless such landlord should be heard. In view of this difficulty faced by the appellant, learned Counsel states that he may be permitted to withdraw the Notice of Motion in which the present order is passed and which seeks permission to effect tenantable repairs. He states that he will make an attempt to make the landlord a party to the said suit and move a fresh Notice of Motion. In these circumstances, appellant is allowed to withdraw his Notice of Motion. Consequently, this appeal is dismissed as it does not survive. The impugned order also does not survive. However, there will be liberty to take out fresh Notice of Motion if and when original landlord is allowed to be and is impleaded as a party to the suit. It is made clear that other Notice of Motion which is admittedly pending and which pertains to the order under Section 351 can proceed. (R.S.MOHITE,J) 3