( 1 ) wp892.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 892 OF 2011 Radhabai Rama Masal & Ors. .. Petitioners Versus Sahebrao s/o. Nagurao Masal & Ors. .. Respondents Mr. R.R. Mantri, Advocate for the petitioners; Mr. N.N. Shinde, Advocate for respondent Nos. 1 & 2; Mr. Rajendrraa Deshmukkh, Advocate for respondent No.3. CORAM : A.V. NIRGUDE, J. DATED : 14.10.2011 P.C. :- 1. This writ petition is filed under Articles 226 and 227 of the Constitution of India against a peculiar order passed on 12th August, 2010, by the Civil Judge, Junior Division, Georai, in Execution Petition No. 47 of 2004. This execution was initiated by respondent Nos.1 to 3. They were plaintiffs/decree holders in Suit No.452 of 1993. They filed a suit for declaration of title and recovery of possession against Rama and others (respondent Nos.5 & 6). They alleged that Rama and other two defendants were in wrongful possession of certain land. The suit was dismissed in 1997. So they filed an appeal in 1997. The appeal was allowed in 2003, but before that Rama died in 2002. It appears from the record that the Court was not informed about Rama’s ( 2 ) wp892.11 death. It further appears from the record that the advocate appearing for Rama, under assumption that Rama was alive, continued to hold the brief and made his submission even at final stage of appeal. Respondent Nos.1 to 3 who were appellants admittedly did not inform the Court about Rama’s death (although they were in a position to inform such fact to the court). It is they whose right to sue could have got affected due to Rama’s death. But they did not take necessary steps for bringing legal representatives of Rama on record so that their right to sue Rama could continue. In view of this, Rama’s death resulted into abatment of the appeal and the suit against Rama. 2. As said above, the appeal was allowed in 2003. Respondent Nos.1 to 3, who were decree holders, initiated execution proceeding in 2004. At that time they admitted that Rama was no more alive. They made an application for amending the execution application for replacing name of Rama with few of his legal representatives. The learned Judge allowed this application. This order is challenged in this petition. On the face of it one may say that the order is patently illegal. The learned Counsel appearing for respondent No.3 conceded to the fact that since his client and other respondent Nos.1 & 2 had not informed the Appeal Court about Rama’s death, the appeal had abated as against Rama. But he said that even ( 3 ) wp892.11 if this writ petition is allowed and the impugned order is set aside, his client’s right to continue with the execution petition against rest of the judgment debtors – respondent No. 5 and 6 should continue. He also said that if advised his client would also take appropriate steps for getting the abatment of the appeal set aside etc. Such possibility cannot be overruled, but if any such action is taken at this belated stage it would be a different matter and beyond the scope of this discussion. 3. Mr. N.N. Shinde, learned Counsel appearing for respondent Nos.1 & 2 submitted that the impugned order does not suffer any illegality because of the express provision of Rule 4 of Order 41 of C.P.C. I am afraid, this submission is devoid of merit, because as indicated above, it was respondent Nos.1 & 3, who were appellants at the first appeal stage, who were under obligation to bring legal representatives of deceased Rama. If that was not done, then they are unable to stop abatment of the appeal as against Rama. 4. The learned Judge of the lower court ought to have understood that the decree passed against Rama was nullity because he was dead long prior to dismissal of the appeal. In view of this, the writ petition should succeed. 5. The writ petition is allowed The impugned order is set aside. The execution shall continue as against ( 4 ) wp892.11 respondent no.5, if permissible, and the same shall be decided in accordance with law. [A.V. NIRGUDE, J.] snk/2011/OCT11/wp892.11