1 cas667.668.12628 ast IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 667 OF 2011 WITH CIVIL APPLICATION NO. 668 OF 2011 AND CIVIL APPLICATION ST. NO. 12628 OF 2011 IN SECOND APPEAL NO. 30 OF 1991 Shri Govind Mahadeo Nikam. ....Applicant. Vs. Shri Bhiva Balu Nikam & ors. ....Respondents Ms. Preeti Walimbe, Advocate for Applicant. Mr. Tahera Qureshi h/f. R.R.Arolkar, Advocate for Respondent No.1. CORAM:- GIRISH GODBOLE, J DATED:- AUGUST 20, 2011 P.C. 1. Respondent No. 1 had filed Civil Suit No. 19 of 1978 for partition and separate possession against 8 Defendants, all were from the branch of Mahadev Nikam. The original Appellant in the Second Appeal Govind Mahadeo Nikam was Defendant No. 1 whereas the Defendant Nos. 2 to 8 (who are Respondent Nos. 2 to 8 herein) were the heirs of Krishna 2 cas667.668.12628 Mahadeo Nikam the real brother of the Appellant Govind Mahadeo Nikam. The Trial Court decreed the suit and awarded half share to the Plaintiff and half share to the Defendants. Civil Appeal No. 92 of 1984 was filed only by Govind Mahadeo Nikam and the same has been dismissed against which Second Appeal was filed which was admitted on 24/1/1991. The Appeal was subsequently dismissed in default on 23/6/2005. In fact, in the mean time, the sole Appellant Govind had died on 22/6/2004 and consequently, the Appeal had in fact abated. 2. Thereafter, the aforesaid 3 Civil Applications have been filed by the heirs of Govind Mahadeo Nikam in the month of April, 2011. Notice has been issued by Order dated 3rd May, 2011. Respondent No. 1 is represented by Advocate, who vehemently opposed the 3 Civil Applications. Notice on Respondent Nos. 2 to 8 is however returned unserved with bailiff’s remark that “no such persons residing at given address”. Ms. Preeti Walimbe, learned Advocate for the Applicants makes a statement that there is no dispute inter se between the original Appellant or the present Applicants on one hand and Respondent Nos. 2 to 8 on the other hand. She further states that the basic challenge is about share granted to the Respondent No. 1 Plaintiff and not to the entitlement 3 cas667.668.12628 of Respondent Nos. 2 to 8 or their claim as persons having equal share with the deceased original Defendant No.1 Govind and on that ground prays for waiving service of notice in these Civil Applications on Respondent Nos. 2 to 8. The submission is correct and deserves to be accepted. Since there is no dispute between Applicants and the Respondent Nos. 2 to 8 and the Applicants accept the right of the Respondent Nos. 2 to 8 of having share equal to them in the suit property and dispute is essentially between the Applicants (heirs of the original Appellant) on one hand and the Respondent No. 1 on the other hand; it is not necessary to await for service of notice to the Respondent Nos. 2 to 8 for these Civil Applications. 3. Though the Application is opposed by Respondent No.1, considering the fact that on 23/6/2005, when the Second Appeal had already abated, the order of dismissal in default is really inconsequential and if the abatement is set aside, the consequence of restoration must follow. However, even for considering the said request, it is necessary to entertain Civil Application No. 667 of 2011. The reasons indicated in paragraph-3 and 8 deserve to be accepted. Hence, the Civil Application No. 667 of 2011 is allowed in terms of prayer clause (a). 4 cas667.668.12628 4. Civil Application No. 668 of 2011 is for setting aside the abatement after condoning delay and bringing heirs of the deceased sole Appellant on record. One of the Son of the deceased Mahadeo had predeceased him having died on 24/7/1998 and there is no question of bringing him on record as heir. The reasons given in paragraphs 3 to 6 of this Civil Application deserve to be accepted. Accordingly, the Civil Application is partly made absolute in terms of prayer clauses (a) and (b) only. Further, apart from the Applicant Nos. 1 and 2, Applicant Nos. 3 (a) to 3(c) and 4 to 6 shall be brought on record as heirs of deceased sole Appellant. Amendment be carried out within 4 weeks. 5. In so far as Civil Application St. No. 12628 of 2011 is concerned, the same seeks condonation of delay for bringing heirs of Mahadeo on record. Since Mahadeo Govind Nikam is not party to the Appeal, there is no question of bringing the heirs on record. While allowing Civil Application No. 667 of 2011 heirs of Mahadeo Govind Nikam are taken on record. This Civil Application is not maintainable. The same is rejected. 6. Since Advocate Mr. H.A. Solkar had stopped practising long back 5 cas667.668.12628 and since Mrs. Walimbe is now representing heirs of the original Appellant who have been brought on record, Office not to show appearance of Mr. Solkar, which has already come to an end because of death of original sole Appellant. (GIRISH GODBOLE, J)