*1* IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.9332/2007 Mahadev Dattatraya Dalvi and others. ..Petitioners -VERSUS- Narayan Vitthal Dalvi and others. ..Respondents ............... Mr.K.B.Sonwalkar, Advocate for the Petitioners. Mr.V.S.Talkute, Advocate for the Respondents Nos.3, 5 and 7. ............... CORAM: A.P. DESHPANDE, J. Dated 23rd November, 2009. PC:- 1 The present petition has been filed by the legal heirs of the original Defendant No.1. The present Respondent No.1 had filed a suit for partition and separate possession way back in the year 1992. The suit came to be decreed in the year 1999. Against the judgment and decree the present Petitioners filed an appeal before the first Appellate Court. However, for a considerable long period the Petitioners did not pay Bhatta charges, hence, the appeal came to be dismissed for non prosecution. Belatedly, after a period of about three years an application for setting aside the order of dismissal of an appeal came to be filed before the first Appellate Court. All the Opponents/Respondents in the said application were not served and instead of serving all the Respondents, a Pursis came to be filed by the present Petitioners that the Petitioners are not *2* claiming any relief against the Opponents Nos.5 to 9 and hence, they should not be noticed. 2 It will not be out of place to mention at this juncture that the suit for partition and separate possession was decreed in favour of the Plaintiff and the Court declared that the Plaintiff so also the Defendants Nos.1, 2 and 3 each have 1/4th share in the suit property. The position of the Defendants in a suit for partition is at par with that of the Plaintiff. As stated above, four of the legal heirs of the Defendant No.2 and the Defendant No.3 were not served with the copy of notice in the application for restoration on account of filing of the pursis by the Petitioners themselves. The first Appellate Court dismissed the application by recording the finding that no sufficient cause has been made out for condonation of delay. It is this order passed by the first Appellate Court refusing to condone the delay and restore the appeal which is challenged by filing the present Writ Petition. 3 The learned counsel for the Respondents has raised a preliminary objection to the effect that the decree for partition and separate possession has assumed finality so far as the shares allotted to the Defendants Nos.2 and 3 are concerned and as such, no purpose whatsoever would be served by restoring the appeal even assuming that the Petitioners deserve to be granted an opportunity to contest the appeal on merit. The learned counsel for the Petitioners has chosen not to place on record the pursis filed by the Petitioners in the first Appellate Court to which the learned Judge has made reference in paragraph No.3 of the impugned order. 4 Having regard to the fact that the Defendants Nos.2 and *3* 3 in whose favour the Trial Court has granted the decree for 1/4th share each, were not served with the application for condonation of delay and restoration, no interference with the impugned order is called for even assuming that the Petitioners have made out a good case and the sufficient cause is shown for condonation of delay and for restoration. In that view of the matter, the Writ Petition fails and the same is dismissed. (A.P. Deshpande, J)