1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION NO. 12058 OF 2005 IN CIVIL APPLICATION STAMP NO. 19319 OF 2005 IN SECOND APPEAL NO. 473 OF 1995 Raosaheb S/o Bhausaheb Ghodke Died through Legal Representatives 1. Smt. Ranjanabai W/o Raosaheb Ghodke and others .. Applicants Versus 1. Yeshodabai W/o Ganesh Kulkarni and others .. Respondents Shri N. K. Kakade, Advocate for the Applicants. Shri A. A. More Advocate for the Respondents No. 1 to 5. CORAM : N. D. DESHPANDE, J. DATE : 11TH NOVEMBER, 2009. ORAL ORDER : 1. Heard Shri Kakade the learned counsel for the applicants. This is an application for condonation of delay by the legal heirs of the original appellant who was their father. The original appellant died on 23.02.2005. The application for brining legal heirs and for condonation of delay came to be filed on 13th October, 2005. Admittedly, there is delay of 143 days. The reason stated is the 2 advise given to them to obtain succession certificate. When they obtained the certificate and appeared before this Court with application for bringing the legal heirs on record and to take the place of original appellant as cause of action survives against the defendants. Thus the applicants are the legal heirs of the original appellant who had filed a suit for specific performance of registered agreement to sale dated 27th March, 1975. 2. In the Trial Court the appellant/plaintiff lost the suit for specific performance. Their appeal was also dismissed and the agreement of sale was held not proved, consequently the relief of specific performance was refused, but the applicants are holding the possession of suit land admeasuring 3 acre 24 Guntha pursuant to the alleged agreement of sale which is no more inforce and not considered by both the Courts below. The present applicants are the legal heirs of the appellant insisted on of continuation of possession. Shri Kakade, the learned counsel for the applicants submitted that, second appeal was admitted by this Court on 28.11.1995, maintaining the same position on the date of filing of the suit as regards to the possession of the suit. It was further submitted that, the appellants have good case in appeal. They would succeed in appeal and urged for not to disturb the said position as regards to the possession over the suit land, despite of the dismissal of the suit and the appeal both. However, he agreed that, upon failure to establish the case in this second appeal, they would surrender the possession without any further delay into the matter. With this oral undertaking he requested for condonation of delay as above. 3 3. Shri More, the learned counsel for the respondents do not object to the application for condonation of delay and hearing the matter on merits instead of the appeal being abated, in all fairness. After recording the above submissions I allow the present civil application for condonation of delay of 143 days in terms of prayer clause 'B'. The delay is condoned. The application is accordingly disposed. The rule is made absolute in above terms. [ N. D. DESHPANDE, J.] bsb/Nov. 09