ssm sm sm 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 SECOND SECOND SECOND APPEAL NO. 790 OF APPEAL NO. 790 OF APPEAL NO. 790 OF 2007 2007 2007 Dagadu Rama Jadhav (Since deceased through his Legal heirs) ...Appellants. Vs. Atmaram Shripati Yadav & Ors. ...Respondents. Mr.Dilip Bodke for the Appellants. Mr.P.B.Gujar for the Respondents. CORAM CORAM CORAM : ANOOP V. MOHTA,J. : ANOOP V. MOHTA,J. : ANOOP V. MOHTA,J. DATED DATED DATED : 2nd July, 2008 : 2nd July, 2008 : 2nd July, 2008. JUDGMENT:- JUDGMENT:- JUDGMENT:- . Appellant Nos. 1A to 1E are the Legal heirs of original Defendant No.1 Dagadu who expired on 18/02/1999. The Respondent-Original Plaintiffs’ suit for possession against the Appellants was dismissed on 30/06/1995, therefore, the appeal was preferred against the impugned judgment and order dated 18th January, 2003. The Appeal has been allowed and suit is decreed against the Defendants, deceased Dagadu and Vithoba, i.e. original Defendants and directed to deliver the possession of the suit property apart from usual order of enquiry under Order 20 Rule 12. Therefore, the present Second Appeal is filed by the L.Rs. of deceased Dagadu and original Defendant No.2 Vithoba who are in joint possession of the property ( 2 ) since long. Therefore, question is whether the reversal order dated 18th January, 2003 is nullity as passed against the dead person i.e. Dagadu? 2. There is no dispute about the death of Dagadu pending the hearing of the Appeal before the Lower Appellate Court. No steps were taken to bring the legal heirs of Dagadu at the time of hearing and or any stage of the proceedings and got the judgment. The reversal judgment was delivered on 18th January, 2003. Therefore, on the date of impugned order, Defendant No.1 Dagadu was no more. Therefore the judgment and decree passed against the dead person is nullity. 3. The suit is for possession of the property which is admittedly in joint possession of Dagadu now deceased - through his L.Rs. (Appellant Nos. 1A to 1E) and Vithoba. The impugned Judgment is also against both the defendants. Therefore, without going further into the merits of the matter, at this stage itself, the decree against the dead person is nullity and is accordingly quashed and set aside. 4. The matter is remanded back to the District Judge, ( 3 ) Satara with liberty to the parties to take steps to bring the Legal Heirs of deceased Dagadu and resubmit their arguments based on the material available on record. 5. By keeping all points open including the condoning the delay and reason for not bringing the Legal heirs of deceased Dagadu on record at the appropriate time, the Appellate Court to give opportunity to both the parties and pass appropriate order in accordance with law. The Appellate Court may also consider to dispose of the Appeal within a reasonable time, preferably within six months. 6. In view of this, the issue is answered in positive. 7. The present Second Appeal is, therefore, allowed. The impugned judgment and order dated 18th January, 2003 is quashed and set aside. The matter is remitted back to the District Judge, Satara to decide the same in accordance with law, in view of the observations made above. ( 4 ) (ANOOP (ANOOP (ANOOP V. MOHTA, J.) V. MOHTA, J.) V. MOHTA, J.)