1 HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION. NOTICE OF MOTION NO.150/2008 IN TESTAMENTARY SUIT NO.59/2008 IN TESTAMENTARY PETITION NO.1030/2007. Mahesh Mithalal Trivedi. ..Petitioner/Plaintiff -VERSUS- Dinesh Jethalal Soni. ..Caveator/Defendant/Applicant ......... Mr.S. Lakdawala, Advocate i/b Mr.N.R.Gandhi, Advocate for the Plaintiff. Mr.Bhavesh Parmar, Advocate for the Caveator/Defendant. Mr.S.S.Joshi, A.G.P. For the Respondent No.1. Mr.K.R.Bulchandani, Advocate i/b Kamal & Co., for the Respondents Nos.3 and 4. .......... CORAM : A.P.DESHPANDE, J. DATED : 08th APRIL, 2009. P.C. : 1. This notice of motion is taken out by the Caveator/Defendant in a petition for letters of administration which has been converted into a suit. The Caveator is opposing the petition 2 for letters of administration. The Respondent No.3, in this notice of motion, was a tenant in occupation of the premises on 12th floor of the building in regard to which the Will has been executed. The premises in possession of the Respondent No.3 appears to have been transferred in favour of the Respondent No.4 and the Respondent No.4 is carrying on some repairs which do not appear to be touching the structural part of the building but seem to be repairs in regard to plastering of the wall and ceiling. Be that as it may, by the present notice of motion, the Caveator/Defendant is seeking an order of injunction with a view to prevent the Respondents Nos.3 and 4 from carrying out repairs by contending that the property which is subject matter of the testament be needed to be kept as it is. 2. Per contra, the learned counsel appearing for the Respondents Nos.3 and 4 opposes the very maintainability of the application by contending that in testamentary proceedings the property which is covered by the testament cannot be said to be property in dispute in a suit and thus, no order with a view to protect the property can be passed in these proceedings. The learned counsel has placed reliance on the judgment of the learned Single Judge of this Court in 2006(6) Mh.L.J. 786 and the judgment of the Supreme Court reported in 2007(13) SCC 562. 3. The motion preliminary objects to the repairs being carried out by the occupier. Ordinarily no interim relief can be claimed by the Defendant as of right in a suit filed by the Plaintiff. 3 The Caveator/Defendant is seeking an injunction against the Respondent No.4 with a view to prevent him from carrying on repairs which are in nature of plastering the premises. The Plaintiff has not objected to the said repairs. 4. Having regard to the totality of the facts and circumstances, I am of the clear view that the Caveator/Defendant is not entitled to interim relief sought for. In the result, the notice of motion is dismissed. JUDGE