1 20.cas915.11 ast IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 915 OF 2011 IN CIVIL APPLICATION NO. 1147 OF 2008 IN SECOND APPEAL NO. 1142 OF 2005 Someshwar Bapurao Nilakhe, since deceased through L.Rs. & ors. ....Applicants. Vs. Vinayak B. Nilakhe & ors. ....Respondents Mr. A.P. Kulkarni, Advocate for Applicants. Mr. S.S.Kulkarni, Advocate for Respondent Nos. 1 and 2. CORAM:- GIRISH GODBOLE, J DATED:- SEPTEMBER 7, 2011 P.C. 1. This Civil Application seeks following two substantive reliefs. “(a) Delay 13 years and 206 days in filing the present application may kindly be condoned and abatement if any be set aside. (b) Respondent Nos. 3(b)1 to 3(b)4 may kindly brought on record in Civil Application No. 1147 of 2008 as well as Second Appeal No. 1142 of 2005 and the cause title be amended 2 20.cas915.11 accordingly;” 2. Perusal of the record shows that the Respondent No. 1 had filed Special Civil Suit No. 326 of 1986 for partition and separate possession in which Smt. Bhagirathibai Shantvirappa Baswanti was Defendant No. 3. The Suit was decreed on 11/1/1988. The Appellant filed First Appeal No. 922 of 1992 in this Court which was subsequently transferred to the District Court at Pune on account of enhancement of jurisdiction and was numbered as Civil Appeal No. 21 of 2004. During the pendency of the said Appeal Smt. Bhagirathibai Shantvirappa Baswanti died and hence her 3 sons and one daughter were brought on record as her heirs. Subhash Baswanti was thus brought on record as Respondent No. 3B in the First Appeal, which was subsequently transferred to the District Court. Said Subhash Baswanti had died on 3/5/1997. The District Court decided the Appeal on 2/3/2005. Thus, Subhash Baswanti had died during the pendency of the Appeal in the District Court. 3. Since Subhash Baswanti had died prior to the filing of this Second Appeal and during pendency of the Appeal in the District Court, there is no question of abatement of this Second Appeal as against him. The Civil Appeal in the District Court would however abate as against him. Mr. 3 20.cas915.11 Kulkarni contends that since Subhash Baswanti was one of the heirs of the deceased Smt. Bhagirathibai Shantvirappa Baswanti and since other heirs represented her estate, there would be no abatement of the Appeal in the District Court. That question will be decided at the time of admission of the Second Appeal, if it is restored. Hence I pass following order : (a) This Application is rejected. It is clarified that the question as to whether the entire Appeal in the District Court would abate on account of death of Subhash Baswanti or would not abate on account of since other heirs of deceased Smt. Bhagirathibai Shantvirappa Baswanti were on record. Questions whether the Appeal could have been decided on merits in case Court comes to a conclusion that the entire Appeal would abate, are kept open for being agitated at the time of hearing of the Application for restoration and/or the Second Appeal in case is restored. 4. Copy of this order to be retained in the proceedings of Civil Application No. 1147 of 2008 and Second Appeal No. 1142 of 2005. (GIRISH GODBOLE, J)