1 10-cas-607-2010.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION srj CIVIL APPLICATION NO. 607 OF 2010 IN SECOND APPEAL NO.38 OF 2010 Dinkar S. Thopate (since deceased) through his Legal Heirs .. Applicants. V/s. Chandrakant S. Thopate (since deceased) through his Legal Heirs & Others .. Respondents. None for Applicants. Mr. P. B. Gujar, for Respondent Nos.6 and 7. CORAM : G.S.GODBOLE, J. DATE : 16th SEPTEMBER, 2011. P.C.: 1 Heard the learned Advocate for the Respondent No.6 and 7. 2 By this Civil Application, the following substantive reliefs are prayed for:- “(ia) To condone the delay of 906 days in filing the present application for bringing legal heirs of Respondent No.3 on record. 2 10-cas-607-2010.sxw (a) To direct the Applicants to bring Respondent Nos.3A and 3B as Legal Heirs of Respondent No.3 on record of Second Appeal No.38 of 2010.” 3 Putlabai Mahadeo Thopate was Original Defendant No.3 in Regular Civil Suit No.343 of 1986 which was a suit for partition and was decreed on 19th April, 2003. Defendant Nos. 7 and 8 filed Regular Civil Appeal No.169 of 2003 in the District Court at Satara in which Putlabai was Respondent No.4 and during pendency, she died on 27th July, 2007. Her heirs were not brought on record. By impugned Judgment and Order dated 17th July, 2009, the said Regular Civil Appeal No.169 of 2003 was allowed and suit has been dismissed. This is the order against which the Second Appeal has been filed. 4 It is obvious that since Putlabai died during pendency of the Appeal in District Court, that Appeal had itself abated as against her and, hence, there is no question of abatement of Second Appeal. There is no question of delay in filing Civil Application and prayer for condonation of delay is redundant. Prayer for bringing heir of deceased Respondent No. 3 on record of the Second Appeal cannot be granted, since the Appeal against her had itself abated in the District Court. Hence, this Civil Application is not maintainable and is rejected with the aforesaid clarification that Regular Civil Appeal No.169 of 2003 filed by the Original Defendant Nos. 7 and 8 in the District Court at Satara had itself abated as against Original 3 10-cas-607-2010.sxw Defendant No.3- Putlabai, who was Respondent No.4 in that Regular Civil Appeal. 5 The legal effect of said abatement on the maintainability of the said Appeal will be considered at the time of hearing of the Second Appeal for admission. For that purpose, copy of this order should be retained in the original sheet of the Second Appeal. (G.S.GODBOLE, J.)