1 23sa536-07 rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURSIDICTION SECOND APPEAL NO.536 OF 2007 Keraba Krishna Chougule (Since deceased through his LR's) and others .. Appellants V/s. Appa Linga Chougule (Since deceased through his LR's) and others .. Respondents ..... Mr. Ramdas Shelke i/b. Mr. S. G. Deshmukh for the appellants. Mr. G. M. Savagave for respondent Nos.1A to 1C. ..... CORAM : A.S.OKA, J. DATE : DECEMBER 2, 2011. P.C.: Heard the learned counsel appearing for the appellants and the learned counsel appearing for the respondent No.1A to 1C. The respondent No.1A to 1C are the legal representatives of one Appa Linga Chougule who was the plaintiff in the Regular Civil Suit No.29 of 1983. The said suit filed by the respondent Nos.1A to 1C was dismissed by the trial Court. Civil Appeal No.308 of 1996 was preferred by the respondent No. 1A to 1C before the District Court. The said Appeal was allowed by the impugned Judgment and decree and the suit filed by the respondent No.1A to 1C was decreed. Now it transpires that the second respondent Namdeo who was second defendant in 2 23sa536-07 the suit died on 7th September, 2003 during the pendency of the Appeal in the District Court. The Appeal was allowed on 28th December, 2006. However, the legal representatives of the second respondent Namdeo were not brought on record during the pendency of the Appeal. In fact, when the Appeal was decided, the same had already stood abated as against the second respondent. The learned counsel appearing for the respondent No.1A to 1C accepted the position that the Appeal stood abated against the second respondent. Consequently, the decree passed by the Appellate Court is nullity and the same will have to be quashed and set aside only on that ground. However, it will be open for the respondent No.1A to 1C who are the appellants in the said Appeal to apply for setting aside the abatement of the said Appeal by filing an appropriate application. 2. Hence, I pass the following order: :: O R D E R :: i. The impugned Judgment and decree dated 20th December, 2006 passed in Regular Civil Appeal No.308 of 1996 is quashed and set aside and the Regular Civil Appeal No. 308 of 1996 is restored to the file of the District Court. The said Appeal 3 23sa536-07 stands abated as against the second respondent therein. ii. It will be open for the appellants in the said Appeal to apply for setting aside the abatement. If such application is made, the District Court shall hear the same in accordance with law. iii. Second Appeal is partly allowed on the above terms with no order as to costs. iv. Civil Application No.781 of 2007 does not survive and the same is disposed of. (A.S.OKA, J.)