1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION NO.10505 OF 2006 IN SECOND APPEAL ST.NO.22778 OF 2006 Datta s/o Anandrao Sawant, R/o-Vijaynagar, Garkheda area, Aurangabad and another. ...APPLICANTS. VERSUS Municipal Corporation, Aurangabad Through its Commissioner and others. ...RESPONDENTS. ... Mr. P.F. Patni Advocate for Applicants. Mr. K.D. Bade Patil Advocate for Respondent Nos.2 and 3. None present for remaining Respondents. ... CORAM: K.K. TATED, J. DATE : 10TH JULY, 2009. PER COURT : 1. Heard learned counsel for the Applicants. Mr. K.D. Bade Advocate appeared on behalf of Respondent Nos. 2 and 3. No one appeared on behalf of remaining 2 Respondents. 2. Present Civil Application is preferred by third party for leave to file Second Appeal against the Judgment and decree dated 10th October, 2006 passed by 5th Additional District Judge, Aurangabad in Regular Civil Appeal Nos.388 of 2005 and 151 of 2006. It is the contention of the learned counsel for the Applicant that original Respondent Nos. 5 to 10 filed Regular Civil Suit No.660 of 1992 in respect of their property i.e. Plot No.15187/A-1 and Plot No.15187/A-2. The said suit was decreed by Judgment and decree dated 5th October, 2005 passed by Joint Civil Judge, Junior Division, Aurangabad. The original defendants in Regular Civil Suit No.660 of 1992 preferred Regular Civil Appeal No. 338 of 2005 and 151 of 2006. At the time of allowing both the Appeals, the first appellate Court set aside the decree passed by the trial Court and the suit was partly decreed with the following direction: "The impugned order revoking the lay out of Vijay Nagar vide the letter of Corporation No. Mun. Corporation/ NRV / Lay out/289/92 dated 23/1/1992 is 3 modified and the Corporation is directed to construct the road in between said 7 plots in the Vijay Nagar lay out as mentioned in the order of the Corporation and Vidya Nagar lay out of 4 Meters width through the seven adjacent plots in Vijay Nagar lay out. Rest of the lay out of these seven plots stands confirmed." 3. Learned counsel appearing on behalf of the Applicants states that when the original suit was filed by owners of two plots only, the first appellate Court erred in passing the order in respect of remaining five plots belonging to the Applicants also. The Applicants are owner of Plot Nos. 15187/A-4 to A-6. Therefore the impugned Judgment and decree dated 10th October, 2006 passed by the first Appellate Court is affecting their rights. Therefore the Applicants prayed through present Civil Application for leave to file the Appeal challenging the common Judgment and decree passed by 5th Additional District Judge, Aurangabad dated 10th October, 2006. In support of his submissions, learned counsel for the Applicants relied on following three authorities: 4 i) Banarsi and others vs. Ram Phal, reported in AIR 2003 S.C. Page 1989, ii) Smt. Jatan Kanwar Golcha vs. M/s Golcha Properties Private Ltd., (in Liquidation), reported in AIR 1971 S.C. Page 374, iii) Fakir Mohamed Abdul Razak vs. The Charity Commissioner, Bombay and others, reported in AIR 1976 Bombay, 304. 4. In all these three authorities, the Apex Court as well as the Bombay High Court held that if a person is affected by the Judgment and decree, though he is not party to the said litigation, he can challenge the same. 5. Learned counsel appearing on behalf of Respondent Nos. 2 and 3 have no objection if the present Application is allowed. Considering these facts, it is necessary to allow present Civil Application because as per the order dated 10th October, 2006 passed by the 5th Additional District Judge, Aurangabad, the Applicants property rights are going to be affected. 5 6. In view of these facts and circumstances, present Civil Application is allowed in terms of prayer clause (B) which reads as under: "(B) The applicants may please be granted leave to file appeal for challenging the common Judgment and decree passed by learned 5th Additional District Judge, Aurangabad in Regular Civil Appeal Nos. 388/2005 and 151/2006 dated 10/10/2006." 7. Civil Application is disposed of accordingly. [K.K. TATED, J.] asb/JULY09/ca10506.06