1 wp9796-10.sxw jpc/- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 9796 OF 2010 Bhikaji Tukaram Zagade .. Petitioner Versus Krishna Tanu Bbandarkar and others .. Respondents Mr. R. A. Thorat, for the Petitioner Mr. Rupesh R. Pawaskar for respondent No.1 CORAM: R. M. BORDE, J. DATED : 22nd August, 2011 P. C. 1. Heard Mr. Thorat, the learned counsel for the petitioner and Mr.Pawaskar, the learned counsel for the respondent No.11. 2. The petitioner herein, the original defendant, tendered an application along with memo of appeal seeking condonation of delay of 2 years and 57 days occurred in presenting the appeal. While dealing with the application, the learned Principal District Judge, Sindhudurg, has rejected the same and has also further ordered abatement of the application 2 wp9796-10.sxw 3. There is no dispute that the appeal is presented by the defendant beyond 2 years and 57 days of limitation. It was pointed out during the course of hearing of the application that respondent no.1 original plaintiff who is contesting party is dead and his legal heirs were not brought on record. The learned Principal district Judge, therefore, considering the contention raised by the contesting party and after recording reasons in para 9 of the order and proceeded to reject the application having been abated. 4. The application seeking condonation of delay has not been rejected on its own merits. It is, therefore, open for the applicant to take appropriate steps and request the Court to set aside the order of abatement of Civil Misc. Application No. 65 of 2005. The order passed by the learned Principal District Judge appears to be convincing. However, on perusal of the reasons recorded in para 9 of the order, it is evident that the learned Principal District Judge intended to reject the application having been abated. 5. As stated above, the course open to the applicant is to apply for setting aside the order of abatement and 3 wp9796-10.sxw thereafter, he may proceed to press the application seeking condonation of delay occurred in presenting the appeal. 6. So far as the instant writ petition is concerned, in exercise of the powers under Article 227 of the constitution of India, no interference is called for. 7. The writ petition is disposed of with the clarification as stated above. ( R. M. BORDE, J.)