1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.704 OF 2006 IN SECOND APPEAL STAMP NO.21189 OF 2004 Rajaram Naikaba Gavali : Applicant. Versus Sadashiv Ganpati Kabade (since deceased through his legal heirs and representatives) 1A Smt.Krishnabai Sadashiv Kabade and others. : Respondents. Ms.Leena Patil for the Applicant. Mrs.S.S.Deshpande for Respondent Nos.1-A CORAM : R.M.SAVANT, J DATED : August 08, 2008 P.C. 1. By the above Civil Application, the Applicant prays for bringing the legal heirs of the Respondent on record. The Applicant also prays for condonation of delay in bringing the said legal heirs of the Respondent on record. The Applicant/proposed Appellant is faced with a decree under which he has to hand over the possession of the property in question to the Respondent. The parties to the 2 proceedings are closely related. The reasons for delay are mentioned in the above Civil Application inasmuch as it has been inter alia stated that faced with the decree passed by the trial Court and the lower Appellate Court, the Applicant was at a loss and being a layman and not being aware of the niceties of the law, delay in filing the above Appeal has occasioned. 2. Per contra, it is contended on behalf of the Respondent that the Appeal filed against a dead person is not maintainable and, therefore, the application for bringing the heirs of the Respondent on record cannot be entertained. Mrs.Deshpande, the learned counsel for the Respondent, relies upon the judgment of a Division Bench of the Calcutta High Court reported in AIR 1965 Calcutta 459 in the matter of State of West Bengal, v. Manisha Maity and others. Though in the said judgment it has been held that an appeal against a dead person is not maintainable, it has further been held that an application for bringing the heirs on record can be entertained and the said application would have to be considered on the touch-stone of Section 5 of the Limitation Act. The learned counsel for the 3 Respondent also relies upon the judgment of a learned Single Judge of the Kerala High Court reported in AIR 1968 Kerala 196 in the matter of Angadi Veettil Sreedharan v/s.Cheruvalli Illath Sreedharan Embrandiri Mannoor wherein the same ratio has been reiterated. The reasons cited by the Applicant/Appellant would therefore have to be considered in the said context. 3. In my view, the reasons cited by the Applicant/Appellant can be accepted as the plausible reasons on account which delay has occasioned. The reasons have to be considered in the context of the nature of business and the relationship between the parties. 4. It is trite the parties should not be non-suited for technical reasons but should be allowed to prosecute their remedy on merits as otherwise a meritorious matter may be thrown out for technical reasons. In that view of the matter, the Civil Application would have to be allowed and is allowed in terms of prayer clauses (a) and (b). The learned counsel for the Applicant to carry out the amendment in the cause title of the above First Appeal within two weeks from date. On 4 the formalities being completed, post the above First Appeal for admission on 1st September 2008. [R.M.SAVANT, J]