1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR MCA NO. 1326/2007 IN SECOND APPEAL NO. 299 OF 1990 (Pramod Kisanrao Dharmale & Anr. vs. Asudamal Laxmandas Sindhi & Ors.) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. MARCH 30, 2009. Heard Shri Mohta, learned counsel for the appellants/ applicants. The application is by original defendant. The suit filed by the original respondent for specific performance was decreed and then the present applicant filed Regular Civil Appeal, which came to be allowed. The original plaintiff then filed Second Appeal No. 299 of 1990 and to prosecute it, the present applicant engaged some advocate. The grievance is that the said advocate has not appeared and ultimately Second Appeal was allowed without hearing the defendants on 4.3.2003. When the plaintiff filed execution proceedings and summons were served upon the defendants, they got knowledge of the decision in Second Appeal and they have filed present proceedings with an application for condonation of delay. On 2 11.12.2007, said Civil Application No. 2955 of 2007 was allowed and delay was condoned. Thereafter the present MCA for setting aside ex parte judgment and decree passed in Second Appeal is listed for further consideration. Though the respondents are served, they have chosen not to appear. The record shows that insofar as non- applicant No.1A in said MCA is concerned, as per orders dated 4.12.2008, the matter has abated as against him. Shri Mohta, learned counsel has invited attention to the fact that the trial Court framed issue No. 15 to find out whether the plaintiff before it was from agriculturist family. He states that such an issue should have been referred for adjudication to tenancy authorities as per Section 125 of Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958, and the adjudication of said controversy by the Civil Court is without jurisdiction. He states that in the Second Appeal this aspect has been lost site of. However, I find that the judgment and decree dated 4.3.2003 delivered by this Court in Second Appeal has attained finality insofar as non- applicant No.1A or his heirs are concerned. No 3 orders can be passed to prejudice their interest in present Second Appeal. If any orders are to be passed by this Court, the judgment and decree passed in Second Appeal is to be recalled and that order can operate only against respondents No. 1B and 1C. With the result, there will be two inconsistent orders of this Court in the matter. The law does not contemplate such a situation. It is, therefore, apparent that the present MCA itself has become infructuous in view of the subsequent events. The same is accordingly disposed of. No order as to costs. JUDGE *GS.