((-1-)) mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION REVIEW PETITION (STAMP) NO.17286 OF 2008 IN SECOND APPEAL NO.456 OF 1988 Husen Dastgir Attar Petitioner versus Babu Krishna Pukale & ors. Respondents Mr.D.B.Patil for petitioner. Mr.A.S.Suryawanshi i/by Ashutosh M.Kulkarni for respondents 2 to 5. CORAM : A.S.OKA, J. DATE : 16th January 2009 PC : 1. Heard counsel for the review petitioner. The review petitioner is appellant no.2(D) in the Second Appeal. The first respondent was the appellant no.1 in the second appeal. The second respondent in the review petition is the first respondent in the second appeal who was the original plaintiff. The suit filed by the 2nd respondent- original plaintiff was dismissed. In appeal preferred by the plaintiff, the District Court interfered and passed a decree for partition in favour of the original defendant nos.3 to 6. The District ((-2-)) Court held that the original defendants 3 to 6 have 1/8th share each in the suit property. However, the District Court held that the original plaintiff has failed to prove that the original defendants 8 and 9 got the sale deed executed by practicing fraud upon the original defendant no.1. However, issue of legal necessity was held against defendants 8 and 9. 2. There are three grounds urged by the counsel for the review petitioner. The first ground is that Bapu, the first appellant in the second appeal was already dead when the second appeal was decided. It is stated that he had died on 26th January 2007. The second ground is that one of the respondents Mahadev had died three years prior to the date of decision of the second appeal. The third ground for review is that a part of the suit claim was time barred. 3. So far as first contention is concerned, even the review petitioner was one of the appellant. His grievance is that the co-appellant i.e. appellant no.1 died prior to the date of decision of the second appeal and his heirs were not brought on record. This ((-3-)) contention is not open for two reasons. Firstly, the present review petition is not filed by the heirs of the deceased appellant no.1 and secondly nothing prevented the review petitioner himself who was one of the appellants from making an application for bringing on record the legal representatives of the deceased appellant no.1. In any event, this grievance could have been made only by the legal representatives of the deceased appellant no.1 provided they establish that they had no knowledge of the pendency of the second appeal. 4. So far as second contention is concerned, it is not in dispute that some of the legal representatives of the deceased respondent were already on record of the second appeal. Therefore, there is no merit in the second contention. 5. So far as third contention is concerned, it is well settled position of the law that a second appeal can be heard only on the basis of substantial questions of law which are framed at the stage of admission. The substantial questions of law which were framed and which have been decided have been set out in ((-4-)) paragraph 7 of the judgement in the second appeal. No substantial question of law on limitation was framed. Apart from this, there was no prayer made at the time of hearing of the second appeal for invoking the powers under proviso to sub section 5 of section 100 of the Code of Civil Procedure, 1908. Hence, there is no merit in the third ground. 6. No case is made out for review. The review petition is accordingly rejected. (A.S.OKA, J.) ((-5-)) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.84 OF 2008 IN REVIEW PETITION (STAMP) NO.17286 OF 2008 IN SECOND APPEAL NO.456 OF 1988 Husen Dastgir Attar Petitioner versus Babu Krishna Pukale & ors. Respondents Mr.D.B.Patil for petitioner. Mr.A.S.Suryawanshi i/bny Ashutosh M.Kulkarni for respondents 2 to 5. CORAM : A.S.OKA, J. DATE : 16th January 2009 PC : 1. Heard advocate for the applicant. Sufficient cause is made out for condonation of delay. Delay is condoned. The application is allowed. (A.S.OKA, J.)