1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR MCA NO.1127/2011 IN SA NO. 83/1977 Thakurjee Deosthan, Sihora Vs. Laxman s/o Kachru Dahat and others. =-=-=---=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Office Notes, Office Memorandum of Coram appearances, Court's orders or directions & Registrar's orders. Court's or Judges Order =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Mr. S. D. Paliwal, Advocate for the applicant. Mr. V. Dhabe, Advocate for the respondents. CORAM :B.P. DHARMADHIKARI, J. DATED : 25/11/2011. The applicants, who were respondents in Second Appeal No. 83/1977 have taken out this application and are seeking re-hearing of the said appeal by recalling judgment dated 23/11/2010 delivered therein. Reason is learned counsel then representing the applicants could not remain present and could not assist this Court. It is contended that because of his absence, death of some of the respondents could not be pointed out to this Court and hence, the judgment delivered is also against dead persons. Mr. Paliwal contends that as for the very same reasons, this Court has condoned the delay, his objection then noted to absence of Advocate concerned may be considered here also. He further points out that as per provisions of Order XXII Rule 10A 2 of the Code of Civil Procedure, the burden to inform death of respective respondents was upon the counsel then representing the respective respondents and that has not been discharged. Mr. Dhabe states that pursis accordingly was filed and it also bears the acknowledgment of counsel for the appellant in Second Appeal. Mr. Paliwal contends that there is no such acknowledgment and any such intimation or pursis was never served upon counsel or then appellant. The question arising from the alleged death or then intimation thereof to the Court as per Order XXII Rule 10A of the Code of Civil Procedure can be looked into after Second Appeal is restored. The objection by Advocate Paliwal for condoation of delay has already been looked into on 18th November, 2011 and the delay has been condoned. Hence, without recording any separate reasons, the judgment dated 23rd November, 2010 in Second Appeal No. 83/1977 is recalled. Said Second Appeal should be placed before the appropriate bench as per roster for final hearing. Advocate Dhabe assures that he will remain present and assist the Court on behalf of the respondents at such hearing. Needless to mention that the relevance of death 3 of concerned respondents is kept open and can be considered at that stage. MCA is accordingly allowed. CAO No. 773/2011 As the judgment dated 23.11.2010 is already recalled, there is no question of grant of any interim relief. The said application is, therefore, disposed of as infructuous. CAO No. 444/2011 Mr. Dhabe learned counsel for the appellant seeks leave to withdraw the application with liberty to file similar application in restored Second Appeal No. 83/1977. Mr. Paliwal is opposing the application and also grant of liberty. Keeping all objections of Advocate Paliwal open, the application is allowed to be withdrawn and the applicant is at liberty to file appropriate application in Second Appeal. JUDGE Ambulkar.