1 CA No.1576/2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 1576 OF 2010 IN FIRST APPEAL NO. 73 OF 2009 Dr.Balkrishna Pandurang Hankare ...Applicant/ Appellant vs. Mr.Shantaram Sonu Jadhav & Ors. ...Respondents Mr.S.D. Gokhale for the Applicant. Mr.Vishal Kanade i/b. Mrs.Jai V. Kanade for Respondent Nos.2 to 5. Mr.A.M. Kulkarni for Respondent No.6. CORAM : B.R. GAVAI, J. DATED :AUGUST 27, 2010 P.C. :- 1 The prayer in the present application is either to pass an order to issue notice to legal heirs and to bring legal heirs and representatives as per 6(ii) of the Civil Application No.4800 of 2009 in First Appeal No.73 of 2009 or as per order 2 CA No.1576/2010 22(2) of the Civil Procedure Code, the respondent Nos.2 to 5 are the surviving defendants and with whom the right to sue services these respondent nos. 2 to 5 are to be considered as a surviving respondents in the place of respondent no.1 as a legal representatives. 2 Counsel for the applicant submits that respondent nos.2 to 5 are legal heirs of respondent no.1 and therefore, it is not necessary to bring legal representatives of respondent no.1 on record. It is submitted that in the alternative, if this court finds that they are to be brought on record, then notice be issued to them. 3 Admittedly, the respondent no.1 has died during the pendency of the suit. When the first appeal was listed before this court on the earlier occasion, Counsel for respondent nos.2 to 5 has brought this fact to the notice of the Counsel for 3 CA No.1576/2010 the appellant on 9th July, 2009. As a matter of fact, the suit stood abated as against respondent no.1 as respondent no.1 is a dead person. Counsel was suggested that the proper course would be file an application for condonation of delay and setting aside the abatement and to bring legal representatives on record. Counsel, however, submitted that it is not necessary. Since there is no application for setting aside abatement and for bringing legal representatives on record, the prayer made in the application cannot be granted. 4 The application is rejected. (B.R. GAVAI, J.)