1 WP 9460/09 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 9460 OF 2009 Apparao Maruti Sarvade .. Petitioner V/s PandurangNivrutti Sarvade & Ors. .. Respondents Mr. G.M. Savagave for the petitioner. Mr. V.A. Jadhav for respondent nos.1A to 1F. CORAM: D.G. KARNIK, J. DATE : 15TH JULY 2010 P.C. : 1. Heard. 2. By this petition, the petitioner challenges the order dated 12 July 2007 passed by the learned Adhoc District Judge, Solapur. 3. The petitioner suffered a decree for partition in Regular Civil Suit No.304 of 1994. He filed an appeal along with a delay condonation application after nearly 10 years. The delay was of 9 years 8 months and 15 days. In the delay condonation application, he obtained an exparte stay for execution of the decree for partition. Thereafter the 2 WP 9460/09 petitioner sold the property to a third person. The original decree holder (Pandurang) died on 8 November 2005. His heirs were not brought on record. On 8 March 2006, the heirs of Pandurang made an application under Order 1 Rule 10 of the Code of Civil Procedure (for short “the Code”) for making them a party in place of Pandurang and by an order dated 4 April 2007 the Court allowed the application. The petitioner did not obey that order and did not amend the application. The heirs therefore made an application for dismissal of the delay condonation application for non- compliance of the order. The appellate court dismissed the delay condonation application under Order 39 Rule 11 of the Code. In my view, that order requires no interference for the reasons indicated below. 4. When Pandurang (the respondent before the lower appellate court) died on 8 November 2005, the petitioner ought to have brought his heirs on record within 90 days. Since he did not bring the heirs of Pandurang on record, the delay condonation application and the appeal stood abated. In fact, it was not necessary for the heirs to make an application dated 8 March 2006 for bringing them on record in place of Pandurang under Order 1 Rule 10 of the Code. 3 WP 9460/09 They however made the application and the court granted it by an order dated 4 April 2007. That was an opportunity which the petitioner should have seized and brought the heirs on record without being required to make an application for setting aside the abatement, but he failed to take benefit of that opportunity and did not comply with the order. The effect is that Pandurang has died and his heirs have not been brought on record. It cannot be disputed that the petitioner was aware of the death of Pandurang who was his own brother. In any event, he became aware when the heirs themselves made an application for bringing them on record on 8 March 2006. Even thereafter the petitioner did not take steps for bringing the heirs on record. Consequently, the delay condonation application and the appeal stood abated. The ultimate conclusion, therefore, is that the delay condonation application and the appeal stand abated and cannot be proceed with. 5. For these reasons, there is no merit in the writ petition which is hereby rejected. (D.G. KARNIK, J.)