1 IN THE HIGH COURT OF JUDICATURE AT MUMBAI CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1246 OF 2009 Jaywant Mahadev Patil (since deceasedthrough his LRs. 1.Smt.Jaywanti J.Patil & Ors. .. Petitioners. Vs. 1.Raghunath Hari Patil & Ors. .. Respondents. Mr.P.S.Dani for the petitioners. Mr.Sameer Singh for respondent no.1. Coram: D.B. BHOSALE, J. Dated : 4TH AUGUST, 2009 P.C. . Heard learned counsel for the parties. 2. This writ petition impugns an order dated 16.10.2008 passed by the Principal District Judge, Raigad, by which he has allowed the application at Exhibit-27 in Civil Appeal No.69 of 2004. The appeal, filed by respondent-defendant No.1, was directed against the judgment and order dated 29.3.2004 passed in the suit instituted by Jaywant Mahadev Patil. The appeal was filed within time. The petitioners are the heirs of Jaywant Mahadev Patil, who died on 23.8.2005. However, on 14.10.2004 the appeal had been dismissed since no steps 2 were taken by the respondent-defendant no.1 for effecting service on the original plaintiff. The respondent-defendant No.1, therefore, filed an application for bringing the legal heirs and representatives of the deceased – plaintiff on record on 21.12.2006. Thereafter, an application for restoration of the appeal was also filed on 31.8.2008. Admittedly, there was a long delay in filing the application at Exhibit-27 for restoration of the appeal and condonation of delay. That application has been allowed by the court below on payment of costs of Rs.20,000/- to the heirs of the original plaintiff. This court is informed that the respondent – defendant no.1 has already paid the costs. Keeping that in view and considering the nature of order and the facts and circumstances of the case I am not inclined to interfere with the order impugned. Hence the writ petition is dismissed. At this stage Mr.Dani, learned counsel for the petitioners informs that during pendency of this writ petition the respondent withdrew the application for LRs and in view thereof the appeal deserves to be dismissed as incompetent. It appears that the respondent-defendant no.1 withdrew the application for LRs after bringing the heirs of the original plaintiff on record in the petition. Having considered the submission of Mr.Dani, liberty to the petitioners to make an application before the lower appellate court seeking dismissal of the appeal as incompetent against the present petitioners. 3 If such an application is made, the same may be considered on merits in accordance with law. All contentions are kept open. With these observations the writ petition is disposed of. (D. B. Bhosale, J.)