1 cas970.11 ast IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 970 OF 2011 IN SECOND APPEAL NO. 497 OF 2010 Kumar Kisanrao Dixit @ Jitendra Maruti Mahamuni. ....Applicant. Vs. Smt. Parubai Laxman Dixit & ors. ....Respondents Mr. Ajay Joshi, Advocate for Applicant. CORAM:- GIRISH GODBOLE, J DATED:- AUGUST 17, 2011 P.C. 1. Leave to amend. 2. By this Civil Application, the Applicant/original Appellant has made the following prayers : A) This Hon’ble court be pleased to set aside the order dt. 14.3.2011 passed by Judicial Registrar-I in respect of Dismissal of matter against respondent no. 1 and fresh notice may be issued on the address mentioned in Para of this application and kindly condone the delay of 47 days. B) This Hon’ble court be pleased to set aside the order dt. 14.3.2011 passed by Judicial Registrar-I in respect of abatement of 2 cas970.11 matter against respondent no 3. C) This Hon’ble court be pleased to direct to serve the respondent no 4 by affixing the notice of summons on the conspicuous part of house in terms of Order 4 rule (20) of Code of Civil Procedure 2002.” 2. In so far as prayer (A) is concerned, the said seeks extension of time for service on Respondent No.1 and issuance of fresh notice which can be granted. 3. In so far as the prayer clause (C) is concerned, it will be unsafe to direct the substituted service under Order 5 Rule 20 of the Code of Civil Procedure, 1908. However, fresh notice can be issued to Respondent No. 4 at the same address. 4. In so far as prayer clause (B) is concerned, it is seen from Civil Application No. 969 of 2011 that Kisanrao Ramchandra Dixit (Respondent No. 3 in the Appeal) died during the pendency of the Appeal in the District Court wherein he was Respondent No. 3. Hence, there is no question of abatement of Second Appeal, nor is there any question of setting aside such abatement. However, the question regarding maintainability of the Second Appeal, as also the question whether Regular Civil Appeal No. 168 of 2000 was maintainable after abatement 3 cas970.11 of the said Appeal against the Respondent No. 3 will have to be considered and after satisfying the Court in that regard a liberty will have to be granted to the applicant to file appropriate civil application for substitution of the name of the respondent No. 3 and all other heirs other than the Respondent No. 2 who is stated to be the widow of deceased Respondent No. 3. 5. Hence following order is passed : a) Self operative order dated 14/3/2011 passed by the Additional Registrar (Judicial I) dismissing the Appeal as against the Respondent No. 1 is set aside and the time for service of notice against the Respondent No. 1 is extended. Office to issue fresh notice to Respondent No. 1 returnable after 8 weeks. b) Prayer clause (C) for serving the Respondent No. 4 by substituted service cannot be granted. Office is directed to issue fresh notice to Respondent No. 4 returnable after 8 weeks. c) Prayer clause (B) is rejected, subject to the clarification that there is no question of abatement of the Appeal as against the 4 cas970.11 Respondent No. 3, with further clarification that the Applicant will be at liberty to file appropriate application as observed in paragraph 4 above. 6. Civil application is disposed of in the above terms with no order as to costs. (GIRISH GODBOLE, J)