1 917 cas 126.09.doc K IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.126 OF 2009 IN SECOND APPEAL (STAMP) NO.29507 OF 2008 Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders. Mr Dilip Bodake for applicants. Mr. N.V.Bandiwadekar for respondent nos. 1A, 1B and 6. Mr.R.V.Bansode for respondent no.1-B. Ms.V.S.Mhaispurkar, AGP for respondent nos.2 to 4. CORAM : K.K.TATED,J. DATE : 18/02/2011. PC: 1 Heard learned counsel for parties. 2 This civil application is preferred by original defendant no.5 for bringing legal heirs on record of deceased respondent no.1 Ahamad Mirabhai Shikalgar -original plaintiff. The learned counsel appearing on behalf of applicant submits that during the pendency of the appeal before the lower appellate court respondent no.1- original plaintiff died. It remains on their part to take appropriate steps for bringing 2 917 cas 126.09.doc legal heirs on record of deceased respondent no.1-original plaintiff before the lower appellate court. He submits that respondent no.6 Shahida Jamal Shikalgar one of the legal heir was on record before the lower appellate court, therefore, he may be permitted to bring on record legal heirs of deceased respondent no.1 in the present second appeal. 3 On the other hand, the learned counsel appearing on behalf of respondent no.1A vehemently opposed the present civil application. He submits that the original plaintiff died during the pendency of Regular Civil Appeal No.84 of 2001. As the applicant failed to take appropriate steps in appellate court for bringing legal heirs on record of deceased respondent no.1, the entire appeal abates before lower court itself. He submits that judgment and decree passed by appellate court is against the dead person and therefore there is no question of allowing the applicant to bring legal heirs on record of deceased respondent no.1 in the present second appeal. 4 It is an admitted fact that respondent no.1 expired during the pendency of Regular Civil Appeal No.84 of 2001 and it remain on the part of 3 917 cas 126.09.doc applicant to take appropriate steps before the lower appellate court for bringing legal heirs on record of deceased respondent no.1. It is to be noted that respondent no.6 who is one of the legal heir of respondent no.1 was on record before lower appellate court and therefore, there is no question of abating the entire appeal. 5 Considering this fact, the civil application allowed in terms of prayer clauses (a) and (b) which reads as under: “(a) This Hon’ble Court be pleased to allow the applicants to bring on record the Respondent No.1A and 1B as heirs and legal representatives of the Respondent No.1 namely Ahamad Mirabhai Shikalgar and accordingly allow to amend the cause title; (b) This Hon’ble Court be pleased to condone the delay in filing the present Civil Application and also pleased to set aside the abatement if any;” 6 Applicant to carry out amendment within three weeks from today. If appropriate amendment is not carried out within three weeks from today, the civil application dismissed without referring back to the court. 4 917 cas 126.09.doc 7 After the amendment is carried out, office is directed to place the appeal for admission. 8 Civil Application is disposed of accordingly. (K.K.TATED,J.)