1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION NO. 13465/2009 IN SECOND APPEAL NO. 1575/2004 Shahaji s/o Anandrao and another ...Applicants. Versus Dhondyabai w/o Bhujangrao and others. ...Respondents. ........ Shri P.V. Mandlik, Senior Counsel for applicants. Shri A.G. Godamgaonkar, Advocate for respondent sole. CORAM : N.D. DESHPANDE, J Date : 19/12/2009 PER COURT :- 1 Heard Shri P.V. Mandlik learned Senior counsel for the applicants / appellants. Second appeal has arisen out of the suit for partition and present applicants /appellants were the defendants in partition suit. They are aggrieved by the decree of partition passed by First appellate Court in favour of the respondents and therefore, they have preferred this second appeal which is admitted. However said second appeal came to be dismissed for default by the oder of this Court dated 10-12-2009. In the said impugned order of dismissal for default, there are certain observations made referring to 2 submissions made by learned counsel appearing for respondents Shri Godamgaonkar. However, the appeal could not be decided as there was nobody to represent the appellants. Consequently, the appeal came to be dismissed for default and not on merit. Within a week, this application for restoration was preferred. Perused the application and submissions of Shri Mandlik learned Senior Counsel appearing for the applicants /appellants. The application is allowed. The order of dismissal for default is set aside as the matter was already heard to some extent on the previous date and even today. It is restored for final hearing as it was restored earlier. Today is the last day before vacation and Court will be opened on 4 th January 2010. 2. Shri Godamgaonkar learned counsel for the respondents requested for directing notices to the parties because the order of dismissal was already communicated to them that the appeal came to be dismissed and they had taken away the papers. So, issue notices to the respondents returnable after four weeks for final hearing of the appeal. Shri Mandlik learned Senior Counsel appearing for applicants requested for continuation of earlier stay for delivery of possession saying that the execution is in progress. The stay is 3 granted only to the extent of actual delivery of possession and not for other purposes on condition that the applicants / appellants shall deposit cost of Rs. 1000/- (Rs. One thousand). [N.D. DESHPANDE, J.] tsk/ca13465.09