1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5530 OF 2009 Yeshwant Ramchandra Kamble (Ashtekar) since deceased through LRs. Petitioners versus Shivram Bhau Sarnaik, since deceased through LRs and others Respondents Amit B. Borkar for petitioners. CORAM : A.S.OKA, J. DATE : 24th July 2009 PC :- 1. This is a writ petition filed by the legal representatives of the original respondent no.3 to the appeal preferred by respondent nos.1 to 9 herein. The respondent no.3 in the said appeal died on 30th April 2003. An application was made by the appellant at Exhibit-26 for bringing on record the legal representatives of the deceased respondent no.3 in the pending appeal. The said application was rejected on 24th November 2009 as the original appellant had not filed an application for condonation of delay and an application for setting aside the abatement. Thereafter, a fresh application was filed along with the applications for condonation of delay and setting aside the abatement. By the impugned order the said applications have been allowed by setting aside the abatement subject to payment of costs of Rs.2,000/- and the legal representatives of the original respondent no.3 to the appeal have been ordered to be brought on record. 2. Learned counsel for the petitioners submitted that if the earlier application made by the appellant in the appeal was wrongly rejected, the remedy for them was to challenge the order and they could not have filed a fresh application for the same relief. He submitted that the fresh 2 application filed was not maintainable. The second application filed by the appellant shows that he became aware about the death of the predecessor of the petitioners on 30th January 2003 and, therefore, there is no explanation for long delay. 3. I have considered the submissions. The learned District Judge has noted the fact that the earlier application was rejected. It must be stated here that the said earlier application at Exhibit-26 was filed on 8th April 2003. The appellant became aware about the death of respondent no.3 in appeal on 30th January 2003. Thus, the earlier application was made within a reasonable time from the date on which the appellant came to know about the death of the respondent no.3 in appeal. 4. It is true that in normal course the appellant should have challenged the earlier order passed below application at Exhibit-26 by which the application was rejected on hyper technical ground of not applying for condonation of delay and setting aside the abatement. Immediately after the rejection of the application, the appellants filed fresh applications for condonation of delay and setting aside the abatement. The result of the impugned order is that the abatement of the appeal as against third respondent to the appeal stands set aside. The petitioners have invoked the extraordinary jurisdiction of this Court under Article 227 of the Constitution of India. It is not necessary that this Court should exercise the said jurisdiction in every case where some illegality or error is pointed out. Considering the facts stated above, this Court cannot exercise the said extraordinary jurisdiction for interfering with the order setting aside the order of abatement against a particular respondent. The writ petition is rejected. (A.S.OKA, J.)