1 mpt IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2273 OF 2005 WITH CIVIL APPLICATION NO. 1055 of 2007 IN WRIT PETITION NO. 2273 of 2005 Smt.Chandrabhaga Babu Kadam & ors. .. Applicants versus Smt.Sonubai Mahadu Jadhav,since deceased,through her LRs Shri Vishnu M. Jadhav .. Respondent ... Mr.Yogesh Dabke i/b A.A. Garge for the applicants. Mr.R.D. Suryawanshi for respondent. CORAM : A.M.KHANWILKAR, J DATED : 23rd July 2008 P.C.: 1. In the civil application, the writ 2 petitioner prays for stay of execution proceedings during the pendency of the writ petition. However, the only question involved in the writ petition which arises out of the order dated 22nd December 2004 passed by the appellate court is whether the petitioner appellant had filed the application to bring on record heirs of deceased respondent. Indeed, the petitioner has referred to the averments in the appeal memo filed before the lower court which does indicate that the petitioner appellant had moved an application for bringing legal heirs and legal representatives of deceased respondent on record. However that by itself is not enough unless specific order has been passed by the court of competent jurisdiction permitting the petitioner to bring the legal representatives of the deceased respondent on record. Learned counsel for the petitioner is unable to produce such order. If the legal representatives of sole respondent have not been brought on record, no fault can be found with the opinion recorded by the court below that the appeal has abated. Once the application is abated, no other question needs to be addressed in the present writ petition, unless the abatement of the appeal was to be set aside by the competent court. 2. In the circumstances, this writ petition as 3 well as civil application is disposed of with liberty to the petitioners to pursue their remedy before the appropriate court if so advised. In the event the petitioners are able to produce the copy of the order passed by the court of competent jurisdiction which has allowed the substitution application and permitted writ petitioner - appellant to bring on record the heirs of deceased - sole respondent in that case, the petitioner may move the appellate for review and/or recall the order dated 22nd April 2004, which application be decided on its own merits. (A.M.KHANWILKAR, J)