1 25-cas-965-2011.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION srj CIVIL APPLICATION NO.965 OF 2011 IN SECOND APPEAL (ST)NO.17730 OF 2009 Rangrao R. Patil .. Applicant V/s. Tukaram Kattaji (since deceased) through his Legal Heirs & Others .. Respondents. Ms. V. S. Jagdale, for the Applicant. Mr. Vaibhav Gaikwad i/b. Mr. A.M. Kulkarni, for Respondent Nos.1A to 1D. CORAM : G.S.GODBOLE, J. DATE : 16th SEPTEMBER, 2011. P.C.: 1 Heard the learned Advocates for the parties. 2 At the outset, the learned Advocate for the Applicant prays time to take instructions since she was not sure as to whether the persons indicated in the Civil Application as heir of Respondent Nos.2 and 3 really represented the entire body of the said Respondents. She, however, does 2 25-cas-965-2011.sxw not dispute the fact that Respondent No.2/ Defendant No.2 Ramchandra K. Patil died on 15th August, 2004 and Respondent No.3/Defendant No.3 Subrao K. Patil died on 17th August, 2004. In view of this, the prayer for time was rejected and she was requested to proceed with the hearing. 3 The Applicant is Original Plaintiff in Regular Civil Suit No.89 of 1973 in which aforesaid Ramchandra Patil and Subrao Patil were Defendant Nos.2 and 3. The said suit was dismissed on 29th October, 1990 and the Plaintiff, therefore, filed Regular Civil Appeal No.533 of 1990 in which Defendant Nos. 2 and 3 were impleaded as Respondent Nos.2 and 3. Both of them died on the aforesaid dates, during pendency of the Said Appeal, which was ultimately dismissed on 21st February, 2009. It is thus clear that the said Regular Civil Appeal No.533 of 1990 had itself abated against them in the District Court itself. Hence, there is no question of abatement of the Second Appeal as against them since they were already dead. 4 In this circumstances, there is no question of delay in filing application for setting aside abatement, condoning the said delay or bringing heirs of Defendant Nos.2 and 3 on record. This Civil Application is, therefore, not maintainable. Same is rejected. 5 The question regarding legal effect of abatement of Regular 3 25-cas-965-2011.sxw Civil Appeal No.533 of 1990 against Respondent Nos.2 and 3 therein on the maintainability of the Second Appeal will be considered at the time of hearing of the Second Appeal for admission, in case, the delay is condoned and/or at the time of hearing of the Civil Application for condonation of delay in Civil Application No.1518 of 2009 or Civil Application No.1625 of 2009 for restoration of that Civil Application. (G.S.GODBOLE, J.)