1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.519 OF 2008 IN SECOND APPEAL NO.1210 OF 2005 Shri Insumiya Abdul Rehiman Janjirkar & ors. : Applicants. Versus Shri Abdulla Kasim Sange since deceased through his legal heirs Maimuna Abdulla Sange - dead Ayub Abdulla Sange & ors. : Respondents. Shri Tejapal S. Ingle for the Applicants. CORAM : R.M.SAVANT, J. DATED : September 24, 2008 P.C. 1. By the above Civil Application, the Applicants pray for restoration of the above Second Appeal and the Civil Application of stay which have been dismissed for non-prosecution on account of the conditional order dated 13/1/2006. By the said order, the 2 Applicants/Appellants were directed to serve the Respondents and file their affidavit of service. It is the case of the Applicants that in so far as the heirs of the Respondent No.1 are concerned, they were served on 4/3/2006 and the affidavit of service to that effect has been filed. In so far as heirs of Respondent No.2 are concerned, they are residents of South Africa and, therefore, Air Mail Envelopes with the stamps were supplied to the Registry for the notices being sent to the said Respondents. The above Appeal had appeared on board of the learned Registrar (Judicial) on 11/9/2006 when on account of the fact that the Respondents were not served, the Appeal came to be dismissed for non-prosecution. 2. It is contended on behalf of the Applicants that the dismissal of the appeal in its entirety was uncalled for as the heirs of the Respondent No.1 were in fact served and at the highest the Appeal could have been dismissed against the heirs of Respondent No.2. It is further submitted that the Applicants were not aware of the conditional order dated 13/1/2006 and only when the appeal came to 3 be dismissed for non-prosecution by the order dated 11/9/2006 that the Applicants became aware of the said conditional order dated 13/1/2006. It is, therefore contended that in the process some delay has occasioned. It is also submitted on behalf of the Applicants that in the trial Court as well as in the Appellate Court, both the Respondent Nos.1 and 2 i.e. the original Plaintiffs were represented by the Power of Attorney one Abdulla Haq Ahmed Bondare who in fact has deposed in the said Regular Civil Suit No.74 of 1993. It is further submitted on behalf of the Applicants that the said Bondare has now filed execution proceedings being Regular Darkhast No.6/2005 for execution of the decree. It is submitted that the said Power of Attorney Bondare has been continued by the heirs of the original Plaintiff i.e. the heirs of Respondent Nos.1 and 2 herein. The learned counsel for the Applicants, therefore, states that in the instant Civil Application, notice has been served on the said Power of Attorney and the affidavit of service dated 19/3/2008 has been filed. To the said affidavit of service is annexed the acknowledgment of the said Power of Attorney having received the said notice. In spite of 4 service, none appears for the Respondents. 3. There was an order of status quo in respect of the suit property in favour of the Applicants since 6/10/2005. The Applicants, therefore, pray for restoration of the said order of status quo. Hence for the reasons mentioned in the above Civil Application, the same is allowed in terms of prayer clauses (a) and (b). The Civil Application is accordingly disposed of. The learned counsel for the Applicants seeks leave to amend the cause title of the above Second Appeal so as to incorporate the name of the Power of Attorney. Leave as prayed for is granted. Amendment to be carried out within two weeks from date. [R.M.SAVANT, J]