1 pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Civil Application No. 739 of 2009 in Second Appeal 57 of 1990. Pandurang Daulu Patil, since deceased through legal heirs Shri Krishnath Pandurang Patil & Others .. Applicants v/s. Ramrao Dadu Patil, since deceased through legal heirs Shri Lalaso Ramrao Patil & Others ..Respondents Mr.Tejpal Ingale for the for Applicants Mr.C.G.Gavenekar for the Respondent Nos.1(a) to 1(c) and 3. Respondent No.4 served. Absent. Respondent No.2 deleted Alongwith Civil Application No.1014 of 2009 in Second Appeal 57 of 1990 Shri Ramrao Dadu Patil, since deceased through legal heirs Shri Lalaso Ramrao Patil 2 & Others ..Applicants versus Pandurang Daulu Patil, since deceased through legal heirs Shri Krishnath Pandurang Patil & Others ..Respondents Mr.C.G.Gavnekar for the applicants. Mr.Tejpal Ingale for the respondent Nos.1(a) to 1(g) . None for other respondents CORAM : R.Y.GANOO, J. DATED : 8th December, 2009 P.C. : 1. These two civil applications can be disposed of by a common order keeping in view the point involved therein. 2. One Pandurang Daulu Patil had filed aforesaid Second Appeal No.57 of 1990 against Ramrao Dadu Patil and others. On account of death of said Ramrao Dadu Patil, the original respondent No.1, his heirs were brought on record. 3. The aforesaid second appeal came before me for hearing and disposal. The said second appeal came to be decided by me by judgment 3 and order dated 24.4.2009, thereby setting aside the judgment and decree dated 6.2.1985 passed by learned Civil Judge, Junior Division, Vadgaon, District Kolhapur and judgment and decree dated 4.8.1985 passed in Regular Civil Appeal No.62 of 1985 passed by 3rd Addl. District Judge and Asst. Sessions Judge Kolhapur, District Kolhapur. Since the said appellant Pandurang Daulu Patil was in possesion of the suit property at the time of filing of the Regular Civil Suit and since the decree passed in the Regular Civil Suit as well as appeal arising from the decree passed in Regular Civil Suit came to be set aside, said Pandurang Daulu Patil became entitled to retain the possession of the suit property with him. Since Pandurang Daulu Patil came to be dispossessed during the pendency of this second appeal, the possession of the property was ordered to be restored to Pandurang Daulu Patil while disposing of the second appeal by order dated 24.4.2009. 4. It is seen that the heirs of Pandurang Daulu Patil came to be informed about the order dated 24.4.2009 and thereafter they informed their advocate that the original appellant Pandurang Daulu Patil died on 24.3.2009. The applicants in Civil Application No.739 of 2009, claim to be heirs of Pandurang Daulu Patil. They have filed said Civil Application for reliefs set out therein being Civil Application No.739 of 2009. The applicants in 4 Civil Application No.739 of 2009, (being heirs of Pandurang Daulu Patil) have prayed in their application that judgment and order dated 24.4.2009 passed by this Court in the aforesaid Second Appeal be recalled, names of the applicants be brought on record as legal heirs and representatives of the appellant and record be amended accordingly and further judgment and order passed in the second appeal be modified and restored. It is also prayed that abatement of the second appeal be set aside. 5. The respondent nos.1(a) to 1(c) and 3 in above second appeal have filed Civil Application No.1014 of 2009. They have prayed that order dated 24.4.2009 be set aside. In effect they want that the second appeal should be heard afresh on merits. 6. I have heard learned Advocates on both the sides. According to learned Advocate Mr. Ingale, since the advocate for the appellant could not know at the time of dictation of the order dated 24.4.2009 that the appellant has expired on 24.3.2009, he could not inform the court about the death of the appellant and bring appellant’s heirs on record. According to learned Advocate Mr. Ingale it would be proper if the order dated 24.4.2009 is set aside, the heirs of original appellant are brought on record and appropriate 5 order therein be passed. 7. Learned Advocate Mr. Gavanekar appearing on behalf of the respondents 1(a) to 1(c) and respondent No.3 in this Civil Application submitted that on account of death of appellant in second appeal, on 24.3.2009 i.e. before the delivery of judgment dated 24.4.2009, the second appeal has abated and therefore the order dated 24.4.2009 is required to be set aside and this second appeal is required to be reheard. 8. In support of the contention that on account of death of the original appellant prior to the delivery of the judgment, the appeal has abated, Learned Advocate Mr. Gavnekar relied upon the judgment in the case of Amba Bai vs. Gopal reported in 2001-AIR (SCC)-5- 570. He drew my attention to the paragraph 7 of the said judgment and submitted that once the appellant had died before the delivery of the judgment, the judgment dated 24.4.2009 became a nullity. 9. The learned Advocate Mr.Ingale appearing on behalf of the applicants in Civil Application No.739 of 2009 relied upon the two judgments namely (i) Rafique Bibi (Dead) by LRs vs. Sayed Waliuddin 6 (Dead) by Lrs and others reported in 2004(2) Mh.L.J. And (ii) Om Prakash Marwaha (Dead) Thr. Lrs. vs. Jagdish Lal Marwaha (Dead) Thr. Lrs reported in 2008 (TLS) 47660. According to learned Advocate Mr. Ingale, the judgment relied upon by learned Advocate Mr. Gavnekar in the case of Amba Bai (Supra) can be distinguished. He submitted that in the said case the decree was passed in the second appeal against the said appellant and therefore the Supreme Court has observed that the judgment passed in second appeal was against the dead person and is a nullity. 10. According to learned Advocate Mr. Ingale, in the present case the judgment and decree dated 24.4.2009 is passed in favour of the original appellant. He pointed out that the judgment and decree in the above second appeal is passed against the applicant in Civil Application No.1014 of 2009, who were duly represented at the time of hearing of the second appeal. 11. Learned Advocate Mr. Ingale had placed reliance on the case of Om Prakash Marwaha (Dead) through L.Rs.(supra). He pointed out that in the said case through oversight the application for bringing heirs of Nanakchand, original defendant therein though filed, remained pending and the appeal was decided by District Court. Heirs of said Nanak Chand 7 filed Second Appeal in the High Court. It is noted that heirs of plaintiffs were parties in the second appeal. Hence all heirs of respective parties were on record. Learned advocate Mr.Ingale drew my attention to the text of paragraph 13 of the said judgment which is as follows: “Having carefully considered the submissions made on behalf of the respective parties, we are also inclined to hold that the facts of this case do not warrant any interference with the orders impugned in these two appeals. Admittedly, the original defendant, Nanak Chand had died during the pendency of the first appeal, but it is equally important that an application for substitution of his legal heirs had been made though no order has been passed thereupon and a decree was consequently drawn up against the original defendant who had already expired. The legal heirs of the plaintiff had brought the fact of the death of the sole defendant to the notice of the Court, but it is through sheer inadvertance that the substitution was not effected. However, in the Second Appeal, the legal representatives of the original plaintiff, Jagdish Lal Marwaha, were make parties by the heirs of the deceased defendant, Nanak Chand, who are the appellants therein. The heirs of both the plaintiffs and the defendants were, therefore, duly represented before the High Court in the Second Appeal and it is essentially a technicality which has prevented the heirs of the plaintiff from enjoying the benefits of the decree passed in favour of the plaintiff.” 12. According to learned Advocate Mr. Ingale, keeping in view the observations of the Supreme Court in the case of Om Prakash Marwaha (Dead) through L.Rs. (Supra) and applying them to the facts of this case, this court should pass an order directing the applicants in Civil Application No.739 of 2009 to carry out amendment to the title of the second appeal 8 and then the court should modify the judgment and decree dated 24.4.2009 so as to show applicants in Civil Application No.739 of 2009 as appellants. Learned Advocate Mr. Ingale submitted that it is not the grievance of the applicant in Civil Application No.1014 of 2009 that they were not duly represented at the stage of hearing of the second appeal. Learned Advocate Mr. Ingale had submitted that the amendment as suggested by him is with a view to comply with the formalities. He also submitted that the application to bring heirs of the appellant on record is filed within time. He therefore prayed that appropriate orders be passed in Civil Application No.739 of 2009 as suggested by him and Civil Application No.1014 of 2009 be dismissed. 13. I have considered the rival submissions. I have also perused the judgments cited across the bar. At the outset it will have to be observed that the judgment in case of Raqfique Bibi (Dead) through L.Rs. (Supra) is not applicable to the present case. In the said matter the question as regards jurisdiction of the court which passed the decree was involved. 14. I have read the judgments in the case of Amba Bai (Supra) as well as Om Prakash Marwaha (Dead) through L.Rs. (Supra). The two judgments 9 have to be read harmoniously for the purpose of deciding the point which is raised before me. 15. In the case of Amba Bai (Supra), the suit came to be filed against one Radhu Lal. The suit came to be dismissed against which the appeal came to be filed and the appeal came to be allowed, against which the said Radhu Lal preferred second appeal. Said Radhu Lal died on 14.12.1990 and the second appeal was dismissed on 23.5.1991. The question as regards the execution of the decree passed against Radhu Lal was raised in the execution proceeding and those proceedings ultimately reached the Supreme Court and in the said proceedings the Supreme Court observed that because Radhu Lal had died prior to the decision in the second appeal, the judgment turned out to be the judgment passed against the dead person and that is how the Supreme Court observed in para 7 that the judgment is in nullity. 16. In the case of Om Prakash Marwaha (Dead) through L.Rs (Supra) the facts were little different. The original defendant Nanakchand had died during the pendency of the first appeal and the application for brining his heirs was pending before the District Court. Though this fact was brought 10 to the notice of the Court by the legal heirs of the plaintiff, through sheer inadvertance that substitution was not effected. In the second appeal the legal representative of the plaintiffs were made parties by the heirs of the deceased Nanakchand who were shown as appellants herein. Heirs of Nanak Chand filed second appeal. Hence the heirs of both the parties were duly represented before the High Court in the second appeal and therefore the Supreme Court treated it as essentially a matter of technicality which prevented the heirs of the plaintiff from enjoying the benefit of the decree in favour of the plaintiff. 17. Keeping in view the observations of the Supreme Court in the case of Ambai Bai (Supra) as well as Om Prakash Marwaha (Dead) through L.Rs (supra), and applying them to the facts of this case it is noted that the appellant in the second appeal lost in the trial court as well as in the first appeal at the District Court. The second appeal was decided in favour of the appellant. It is true that at the time when the judgment and decree was delivered on 24.4.2009 the appellant was not alive as he had died on 24.3.2009. In the present second appeal, respondent nos.1(a) to 1(c) and other respondents opposed the second appeal. They were duly represented by an advocate. On 24.4.2009 the learned Advocate for the appellant did 11 not know that appellant had died and that is how the appeal came to be prosecuted by him. All the points raised by and between the parties came to be considered on merits and that is how the judgment came to be delivered on 24.4.2009. Since respondents were duly represented in second appeal, death of original appellant would not affect the merits of the second appeal. 18. In view of the above discussion it would be proper to bring applicant in Civil Application No.739 of 2009 as appellant in second appeal and while preparing the decree in the second appeal No.57 o 1990 the said applicants can be shown as appellant. The persons so brought on record as appellant will have the benefit of decree passed in favour of original appellant. It is not necessary to set aside / recall the judgment dated 24.4.2009 and hear second appeal afresh. In my view the above arrangement is arrived to comply with requirement similar to what had happened in the case of Om Prakash Marwaha (Dead) through L.Rs. (Supra). 19. Keeping in view the aforesaid discussion, following order is passed so as to dispose of the aforesaid two civil applications. ORDER 12 i. Civil Application No.739 of 2009 is allowed on following terms. Applicants in Civil Application No.739 of 2009 be shown as the appellants i.e. heirs of original appellant Pandurang Daulu Patil. Said applicants to amend the appeal memo of Second Appeal No.570 of 1990 accordingly within two weeks from today. ii. Office to prepare decree in Second Appeal No.57 of 1990 by showing the applicants in Civil Application No.739 of 2009 as the appellants. iii. The reference to the appellant in judgment dated 24.4.2009 shall be read as appellants wherever the context requires. In view of this, there is no need to carry out corrections in the main judgment dated 24.4.2009. iv. In view of above, Civil Application No.1014 of 2009 is dismissed. v. There shall be no order as to costs in both the civil applications. [R.Y.GANOO, J.]