IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 23 OF 2007 WITH CIVIL APPLICATION NO. 41 OF 2007 AND CIVIL APPLICATION NO. 61 OF 2007 FRANK MICHAEL COLACO & ANR. ..APPELLANTS (ORIG. PLAINTIFFS) V/S SHRI DEGA JAMBU DASA, SINCE DECEASED, THROUGH LEGAL REPRESENTATIVES. ..RESPONDENTS (ORIG. RESPONDENTS) MS. GAURI GODSE, ADVOCATE, FOR THE APPELLANTS. MR. R.R. SALVI, ADVOCATE, FOR RESPONDENT NOS.1-c, 1-d, 1-e-1 to 1-e-4, 1-f, 1-g, 1-h. MR. S.H. JOSHI, ADVOCATE, FOR THE RESPONDENT NO. 7. CORAM: J.H. BHATIA, J. CORAM: J.H. BHATIA, J. CORAM: J.H. BHATIA, J. DATE : 4TH APRIL, 2008. DATE : 4TH APRIL, 2008. DATE : 4TH APRIL, 2008. P.C. 1. The plaintiffs/appellants had filed Special Suit No. 59 of 1996 for specific performance of the contract on the basis of an agreement entered into with the defendant No. 1. Pending the suit the defendant No. 1 : 2 : died and on an application filed by the defendant no. 7 the trial court passed an order that as the original defendant no. 1 had died and as the L.Rs have not been brought on record the trial of the suit be abated. That order has been challenged in the present Appeal. Admittedly the plaintiff did not file application before the trial court for setting aside the order of abatement and though application for bringing the LRs of the defendant no.1 was made the same was dismissed for non-payment of bhatta charges. The plaintiff has directly filed this Appeal against the order of abatement. After some discussion at the Bar the learned counsel for the plaintiffs/appellants seeks to withdraw the appeal with liberty to move application before the trial court for setting aside the abatement order. It may be noted that the LRs of the original defendant no. 1 are parties to the present Appeal. 2. In view of the above circumstances, the Appeal stands disposed of as withdrawn with aforesaid liberty to the plaintiffs/appellants. The plaintiffs/appellants shall also have liberty to file fresh application for bringing the LRs of the defendant no.1 on record alongwith the application for setting aside the abatement order. If such application is moved within 4 weeks from today, the period taken in prosecuting the present Appeal shall be excluded for the purpose of limitation. The appeal stands disposed of. : 3 : 3. As the Appeal is disposed of as withdrawn, the court fees which was paid initially at the time of filing the First Appeal be refunded as per Rules. 4. As the Appeal itself is disposed of, the Civil Application No. 41 of 2007 and 61 of 2007 do not survive and stand disposed of accordingly. (J. H. BHATIA, J) (J. H. BHATIA, J) (J. H. BHATIA, J)