1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 1017 OF 2002 WITH CIVIL APPLICATION NO. 1841 OF 2006 Dattu Krishna Patil through his heirs :- 1. Vitthal Dattu Patil, aged 46 years, ) 2. Pandurang Dattu patil, aged 42 years ) 3. Sou Indutai Tanaji Yadave,aged 50 ) years. ) 4. Sou Sindhutai Jaysing More,age 35 ) 5. Kum Parvati Dattu Patil,age 31 years ) 6. Anusaya w/o Dattu Patil, aged 67 ) years. Occupation Nos.1 & 2 - ) Agriculturists Nos. 2 to 5 household ) Nos.1,2,5 & 6 resident of village ) Undale Taluka Karad and No.4 R/o ) Urun Islampur, Tal. Walwe and 3 ) Kasar-Shirambe Tal. Karad Dist. ) Satara. ).. Appellants (Org.Plaintiffs) Versus Smt. Gunabai Sawala Patil, age 82 yrs. ) R/o Undale Tal Karad Dist. Satara ) through her Power of Attorney holder, ) Shri Mahadeo Sawala Patil, age 46 yrs. ) occupation Agriculturist R/o Undale,Tal. ) Karad Dist. Satara. ).. Respondents Mr.Vivek Salunkhe,Advocate, i/b. Mr. P.B.Shah,Advocate, for the appellants. Mr. Ranashur B.Baburao i/b. Mr.Uday P.Warunjikar,Advcate,for repondent No. 1. 2 CORAM: J.H.BHATIA,J. DATE: 24th July, 2009. JUDGMENT: 1. The appellants, who are the original plaintiffs, had filed Regular Civil Suit Nos. 327/1988 and 329/1988 for redemption of two separate mortgages about different properties. Both the suits were decreed and the defendant Gunabai Sawala Patil preferred Regular Civil Appeal No.489 of 1991 and Regular Civil Appeal No.490 of 1991 challenging the decrees passed in those two suits. The appeals were filed through her power of attorney holder – Mahadeo Sawla Patil. The appeals were allowed by the common judgment dated 30.9.1998. The original plaintiff has preferred this Second Appeal against the said common judgment in both the appeals.At the outset, it may be stated that this is not correct. Two separate appeals should have been filed. 2. Anyhow, the learned Counsel for the appellants points out that when this Appeal had come up for admission, the learned Counsel for the respondent had made a statement before the Court on 1.12.2005 that the respondent Gunabai had expired on 24.4.1996 and he had also produced a copy of the death certificate of Gunabai. In view of this, the appellant had filed an application for bringing L.rs. of Gunabai on record. That application was 3 allowed. He also made another application, being C.A. No.1841 of 2006 contending that as per the above statement of the Counsel for the respondent, she had expired on 24.4.1996 but her L.rs. were not brought on record in those appeals and, therefore, the first appeals should have abated, but this fact was not brought to the knowledge of the first appellate Court and the first appellate Court proceeded to dispose of the said appeals on 30.9.1998. In fact, the L.rs. of the deceased appellant in the said appeals could be brought on record within 90 days and on expiry of 90 days from the date of death, the appeal would abate unless her legal heirs were brought on record. Therefore, on expiry of 90 days after her death the appeals could not proceed further. The appeals were filed through her power of attorney. It is well-settled position of law that the power of attorney would come to an end with the death of the person who had executed the power of attorney and, therefore, the said power of attorney holder also had no power to prosecute or continue the appeals after her death. Therefore, the appeals should have been abated and judgment could not have passed therein. In view of the above, the impugned judgment is liable to be set aside and appeal deserves to be allowed. 3. For the aforesaid reasons, the Second Appeal is allowed. The impugned judgment in Appeal Nos.489/1991 and 490/1991 is hereby set aside. 4 The appeals are declared to have abated due to the death of the appellant. However, it is made clear that the legal heirs of the said appellant would be at liberty to take steps as per law to seek setting aside of abatement and to bring her L.rs. on record. If such applications are moved, the appellate Court shall pass appropriate orders as per law. 4. As the Appeal itself is disposed of, C.A.No.1841 of 2006 does not survive and stands disposed of accordingly. (J.H.BHATIA,J.)