spb/- 1 ca242-338-243-11f.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION CIVIL APPLICATION NO. 242 OF 2011 WITH CIVIL APPLICATION NO. 338 OF 2011 WITH CIVIL APPLICATION NO. 243 OF 2011 IN SECOND APPEAL NO. 374 OF 1990 Balalu Bali Yadav, since deceased by his heirs: ... Applicants. 1. Bakulabai Balku Yadav, deceased :- 2. Dadasaheb Balku Yadav and others. V/s. Krishnabai Rajaram Mulik, since deceased through her heirs : Jagannath Rajaram Mulik & Ors. .... Respondents. --- Mr. Vinod Jadhav for the Applicants. Mr. U.B.Nighot for the Respondents. ----- CORAM : G. S. GODBOLE, J. DATE : 09th SEPTEMBER, 2011. P.C. : 1 Heard Mr. Jadhav for the Applicants and Mr.U.B. Nighot for the Respondents. 2 Mr. Nighot states that a comprehensive Affidavit- In-Reply is already filed in C.A.No. 242 of 2011 and the same shall be treated as Affidavit-in-Reply in the other two Civil Applications also. Rejoinder has spb/- 2 ca242-338-243-11f.sxw also been filed in C.A. No. 242/2010. 3 The Second Appeal No. 374 of 1990 had been admitted in the year 1990. The sole Respondent had thereafter filed Civil Application No. 2650/1998 for vacating the stay granted in the Second Appeal. Earlier Advocate of the Appellants was appointed as Judge of this Court and hence, a new Advocate was appointed by the Appellants. It is not in dispute that the sole Respondent- Krishnabai Rajaram Mulik had died on 01.12.2004. Consequently, the Appeal abated after expiry of 90 days from the death, as her heirs were not on record and no Application was filed for bringing heirs on the record within that time. Mr. Nighot points out that the fact about death had been informed to the Advocate by the Appellants by letter dated 17.03.2005. However, since no steps were taken for bringing heirs on record; as a result of which a formal order of the abatement was passed on 29th April, 2005. The Application is also opposed on various other grounds including the conduct of the Applicants of having alienated portion of the suit property and accepting compensation during the pendency of the Appeal after obtaining the interim relief from the Court. An Affidavit-In-Rejoinder is filed by the Applicants in which the factum of alienation and receipt of compensation is not denied. spb/- 3 ca242-338-243-11f.sxw 4 In memo of Civil Application No. 338/2011 it is clearly stated that there was no communication from the Advocate of the Applicants. It is further pleaded that the Applicants learnt about the order of abatement of the Second Appeal only when they were served with the notice of the Execution Proceedings in the year 2010 and hence, they have immediately approached the Court by filing these Civil Applications. 5 I have considered the rival contentions. It is no doubt true that there is a substantial delay in filing the Application for setting aside the abatement. However, one cannot overlook the fact that the Applicants are agriculturists and there is nothing to indicate that they had any direct information about the death of the sole Respondent in the Appeal. The claim of the Applicant that though their Advocate was informed by the letter by the Advocate of the deceased- Respondent, there was no communication to them from their Advocate is a plausible explanation. Second Appeal had already been admitted. The deceased Respondent was not staying in the same village where the Applicants were staying. Hence, considering the totality of the circumstances and despite the fact that there is a substantial delay, a chance to contest the Appeal on merit is required to be given to the Applicants. spb/- 4 ca242-338-243-11f.sxw 6 At the same time, merely on account of the setting aside the abatement and restoration of the Appeal, the interim order operating in the Appeal cannot be directed to be revived. In the facts and circumstances of this case, liberty will have be given to the Applicants to file an appropriate Application for grant of such interim relief in such terms as they may desire to prefer. This is on account of the fact that there is material on record to show that the Applicants have themselves alienate a part of the suit property after getting the interim order and part of the suit property has been acquired under the Land Acquisition Act, 1894. Hence, the interim relief operating in the Second Appeal will not be revived subject to the liberty as aforesaid. The Applicants will have to pay costs of Rs. Five thousand to the Respondents. The payment of the costs will be a condition precedent for setting aside the abatement. 7 Hence, I pass the following order. i) Civil Application No. 242 of 2010 is allowed. Only the delay in filing Civil Application for setting aside abatement is condoned. The abatement of the Second Appeal as against the sole Respondent is set aside and the Respondent Nos. 1 to 3, being the heirs of the sole Respondent are allowed to be brought on record as heirs. spb/- 5 ca242-338-243-11f.sxw ii) However, the abatement is set aside subject to the condition of payment of Rs. Five thousand within eight weeks from today. Payment of costs will be a condition precedent. If the cost is not deposited, earlier order of abatement will stand revive and the Civil Application will stand dismissed without further reference to the Court. On depositing the cost, the Advocate for the Respondent will be permitted to withdraw the same. It would also be open to the Applicants to pay costs directly to the Advocate for the Respondents. iii)The interim relief granted in Civil Application No. 3768 of 1990 is not restored. iv) Liberty is granted to the Applicants to file a separate Civil Application for such interim order as they may desire. v) For the aforesaid reasons, the Civil Application No 338/2011 is allowed in terms of prayer clause (a) and the Civil Application No. 243/2011 is also allowed in terms of prayer clauses (a) and (b). vi) In view of the fact that the abatement of the Appeal is set aside and the Appeal is restored to the file, the Civil Application No.2650 of 2998 filed by the Original Respondent in the Appeal will also stand revived. The heirs of the Respondent will be now permitted to spb/- 6 ca242-338-243-11f.sxw carry out amendment in the title of that Civil Application, by showing their names as Applicants in place of the original Applicant therein. [G.S.GODBOLE, J.]