( 1 ) wp3585.09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3585 OF 2009 Omprakash s/o. Damodhar Malani .. Petitioner Versus Nana s/o. Laxman Khandagale, deceased .. Respondents per L.Rs. Mr. Ram B. Deshpande, Advocate for the petitioner. CORAM : V.R. KINGAONKAR,J. DATED : 24.01.2011 P.C. :- 1. Heard. Though served, none appears for the respondents. 2. This petition is being disposed of at the stage of admission in as much as the only short question involved is in respect of setting aside of the abatement order and leave to substitute legal representatives of defendant by name Nana Khandagale. ( 2 ) wp3585.09 3. The petitioner is original plaintiff. He filed suit (R.C.S. No. 28 of 2005) for redemption of mortgage and recovery of future mesne profit. Deceased Nana Khandagale was sole defendant in that suit. When the suit was pending, awaiting effective hearing, defendant Nana Khandagale died on 8th June, 2006. It appears that the petitioner moved application (Exh.21) in the suit for substitution of the legal representatives of deceased defendant Nana Khandagale. There was delay in filing of such application but the petitioner did not file separate application for condonation of the delay. He alleged that he received knowledge about the death of deceased defendant on 06.10.2006 and therefore he filed such application on 12.12.2006. The Trial Court rejected the application on the ground that death of deceased defendant Nana Khandagale was informed to the Court on 25.07.2006 by the advocate for the deceased defendant. The Trial Court came to the conclusion that the petitioner ought to have filed such application within 90 days from the date of such intimation given to the Court. Since it was not done, the application came to be dismissed. ( 3 ) wp3585.09 4. It is true that the delay was not properly explained by filing separate delay condonation application. Still, however, the petitioner’s right to claim the redemption of mortgage is a valuable civil right. The delay was hardly of 48 days from the date of intimation. The petitioner is required to be given opportunity to explain the delay. The learned advocate for the petitioner submits that the petitioner is ready and willing to file a separate application for condonation of delay, as well as afresh application for substitution of the legal representatives, in case the impugned order is set aside. 5. Considering the well settled law that liberal approach is required to be taken in such case, particularly in view of Mithailal Dalsanagar Singh and Ors. V/s. Annabai Devram Kini and Ors., 2003 (4) Mh.L.J.721, it would be appropriate to grant the request. Moreover, the respondents have not contested the petition and as such the technical difficulty may be allowed to be removed by the appropriate explanation on the part of the petitioner. ( 4 ) wp3585.09 6. In the result the petition is allowed. The impugned order is set aside. The petitioner is granted opportunity to file separate application for condonation of delay and also for the purpose of setting aside abatement of the continuation of the application for substitution of legal representatives. 7. The petition is accordingly disposed of. No costs. [V.R. KINGAONKAR,J.] snk/2010/JAN11/wp3585.09