- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION REVIEW PETITION NO.4 OF 2009 IN SECOND APPEAL NO.396 OF 2007 Arjun Ghanaji Alhat ...Petitioner vs. Rangubai Gholu Alhat & others ...Respondents CORAM :A.S.OKA,J. DATE :JUNE 17,2009 P.C. 1 Heard the Counsel for the review petitioner in support of the petition and the learned counsel for the first and second respondents. The review petitioner is the original plaintiff. The Review petitioner filed a suit for partition and separate possession. The suit was decreed. The original defendant nos.1 to 4 preferred an appeal before the District Court. In the appeal, the decree of the trial court has been modified and therefore a Second Appeal was preferred by the review petitioner. Second Appeal was dismissed on the ground that the same stood abated as against respondent no.3-original defendant no.3 and the Second Appeal stood dismissed as against the respondent nos.4 and 5. 2 The learned counsel for the petitioner submitted that at that stage no steps could be taken by the petitioner. He pointed out that in this review petition, heirs of the respondent no.3 have been brought on record. He pointed out that all the respondents have been served with the notice of the review petition. He prays that the order dated 18 th march 2008 be reviewed to enable the petitioner to apply for setting aside the abatement of the appeal against respondent no.3 and for - 2 - restoration of the Appeal as against the respondent nos. 4 and 5. 3 The prayer is opposed by the Advocate for the first and second respondents. 4 I have considered the submissions. Second Appeal arose out of a suit for partition filed by the Review Petitioner. The Second Appeal stood abated against the original defendant no.3 and stood dismissed for non prosecution against two of the original defendants. That is the reason why the Second Appeal was dismissed as the decree of the appellate court had attained finality as against the said respondents. There is no decision on merits of the Second Appeal. Considering the controversy involved, an opportunity deserves to be granted to the review petitioner to prosecute the appeal so that the appeal is heard on merits. 5 Hence, I pass the following order : i) Order dated 18 th March 2008 is recalled. ii)Time of six weeks is granted to the review petitioner to apply for setting aside the abatement as against the respondent no.3 and for restoration of the Second Appeal as against respondent nos.4 and 5. If appropriate steps are not taken within six weeks from today, the Second Appeal will stand dismissed for non prosecution without further reference to the court. iii)If appropriate steps are taken within stipulated period, Second Appeal along with Civil applications therein shall be placed before the appropriate court taking up Second Appeals. JUDGE