1 ca8555.09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CIVIL APPLICATION NO. 8555 OF 2009 IN SECOND APPEAL NO. 291 OF 2001 Fakirrao Nathu Deshmukh-died-L.Rs. 1(a) Balasaheb Fakirrao Deshmukh and ors. ...Applicants VERSUS Jaganath Nathu Deshmukh and others ...Respondents ..... Smt. Rashmi Kulkarni, advocate h/for Shri S.D.Kulkarni, for the applicants Smt. S.T.Shelke,advocate for respondent no. 1 ..... CORAM : SHRIHARI P. DAVARE, J. DATED : 7 th January, 2010 PER COURT : 1 Heard learned counsel for the respective parties. 2 This is an application preferred by the applicants for setting aside the abatement, if any, and also for condonation of delay of 832 days caused in filing the present application for bringing heirs 2 ca8555.09 and L.Rs. of petitioner no.1 on record, and also for the prayer that the petitioner no.1(a) to 1(f) in the present Civil Application be taken on record. 3 It is the contention of the applicants that the petitioners have filed present Second Appeal challenging the judgment and decree dated 30.3.2000, rendered by the Additional District Judge, Shrirampur in Regular Civil Appeal No. 182 of 1998 and same is pending. However, during the pendency of the Second Appeal, appellant no.1 namely, Fakirrao expired on 5.9.2006 and his death certificate is annexed at Exh. ‘A’ with the Civil Application. It is also the contention of the applicants that said Fakirrao was looking after the Second Appeal, and hence, petitioner no.2 has not taken any action in the matter. It is also the contention of the applicants that when petitioner no.2 received the letter about the death of respondent no.1 in January, 2009, in respect of furnishing the details about his heirs and death extract, petitioner no.2 came to know about the pendency of the Second Appeal. Accordingly, it is further the contention of the applicants that the delay caused in bringing heirs and L.Rs. of deceased petitioner no.1 on record is neither intentional nor willful, and hence, same deserves to be condoned. It is also submitted that the abatement, if any, in respect of deceased 3 ca8555.09 petitioner no.1 is also required to be set aside and the applicants are required to be permitted to be brought on record as heirs and L.Rs. of deceased appellant no.1 pending the Second Appeal. 4 Learned counsel appearing for respondent no.1 submitted to the orders of the court, but simultaneously pressed for the costs, if the present application is allowed. 5 For the reasons stated in the present application, it appears that the applicants have explained the delay satisfactorily, but said delay of 832 days is substantial, and therefore, respondent no.1 deserves to be compensated reasonably while allowing the present application. Moreover, it also appears that the said delay is not willful, deliberate and intentional and same deserves to be condoned. Besides that, the heirs and L.Rs. of deceased respondent no.1 are required to be brought on record, since the suit filed by the original plaintiff is for partition and possession. 6 In the result, present application is allowed in terms of prayer clauses ‘A’, ‘B’ and ‘C’ thereof, subject to payment of costs of Rs.2,000/- to be paid by the applicants to respondent no.1 within 15 days from today and applicant to carry out the necessary 4 ca8555.09 amendment within a period of two weeks. 7 The Civil Application stands disposed of accordingly. (SHRIHARI P. DAVARE, J.) dbm/ca8555.09