1 Amk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 3828 OF 2009 AND CIVIL APPLICATION NO. 3951 OF 2009 IN FIRST APPEAL NO. 811 OF 1986 Mukund Nathuji Shelke (deceased) through LRs .. Applicants Vs. Yeshwant Chandrakant Patil .. Respondent Mr. V.S. Paradkar for the applicants. Mr. Ajay K. Panicker for respondent No.1 CORAM : J. H. BHATIA, J. DATE : 14th October, 2009. P.C. 1. Several and similar prayers are made by the applicants who claimed to be LRs of the original defendant-respondent. The suit was filed by the plaintiff-appellant for possession against the original defendant on the ground that the premises was given to the defendant for conducting of business on certain conditions and that agreement was revoked. The suit was dismissed and First Appeal No. 811 of 1986 was filed before this Court. The appeal was admitted. On 14th June, 2005 the Appeal was taken for final hearing. On that 2 day none appeared for the respondent. After hearing the Advocate for the appellant, appeal was allowed and the decree for possession was passed. It appears that, after execution of decree the applicants have moved this application. According to them during the relevant period the defendant was admitted in hospital in serious condition and he died on 04.07.2005. Therefore he himself could not appear. Later on it was revealed that his Advocate Mr. P.V. Sathe had stopped his practice and therefore he had also not appeared. In these circumstances, they have prayed for recalling the judgment and order dated 14th June, 2005 and to restore First Appeal No. 811 of 1986 for fresh hearing. They also prayed for condonation of delay in filing the appeal. They also prayed for impleading the applicants as LRs of deceased respondent. 2. Learned Counsel for the appellant points out that in spite of the order passed by this Court on 25.03.1998 to clear the arrears from March, 1986 and to deposit further amount of royalty and mesne profit, the deceased- defendant had not made payment. Up to 16th October, 2002, he was in arrears of Rs.2,95, 590/-. From 16th October, 2002 no amount has been paid either by the original defendant or his LRs. According to him, on non payment, the Court Receiver was to be appointed and he had to take possession. The learned Counsel for the LRs of deceased respondent undertakes to deposit the arrears and also to pay costs of Rs.10,000/- within six weeks of this date. 3 3. Therefore, with consent of learned Counsel for the parties subject to the applicant depositing all the arrears of royalty and mesne profit up to October, 2009 within six weeks from this date and further depositing costs of Rs.10,000/- to be paid to the appellant, also within six weeks from this date, these two applications are allowed. Delay is condoned. Judgment and Order dated 14th June 2005 is hereby recalled and First Appeal No. 811 of 1986 is hereby restored to file. In the result, the applicants be impleaded as LRs of the deceased- respondent in appeal, within two weeks after the amount is deposited. In case, the applicants fail to deposit all the arrears and the costs within the stipulated period, this application shall be deemed to have been rejected. 4. Both the applications stand disposed of accordingly. (J. H. BHATIA, J.)