1` IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Misc. Civil Application No. 282/2008 in Misc. C.A.No. 914/2005 in Second Appeal No. 208/1979. Kona Narsingrao Naidu vs. Mangalji s/o Hukaji Upadhyaya and another. ------------------------------------------------------------------------------------------------------------------ Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's or directions and Registrar's orders. Orders. ----------------------------------------------------------------------------------------------------------------- CORAM : A.P.LAVANDE, J DATE : 11.04.2008 Heard Mr. Sirpurkar, learned counsel for the applicant and Mr. Dhumale, learned counsel for respondent no.1. 2. The respondent no.1 has expired and as such the main appeal stands abated in terms of the order passed by this court. 3. By this application, the applicant seeks review of the order dated 24.7.2006 by which this court dismissed the application filed by the applicant seeking restoration of Second Appeal No. 208/1979 which was dismissed on 12.9.1991. 4. This court by order dated 24.7.2006 dismissed the application for restoration primarily on the ground that the legal representatives of respondent no.1 were not brought on record although respondent no.1 had expired. 5. Mr. Sirpurkar, the learned counsel for the applicant points out that this court by an order dated 2` 29.7.1991 had already declared the appeal abated in so far as the appellant no. 1 is concerned and this being the position the application for restoration could not have been dismissed solely on the ground that the legal representatives of respondent no.1 were not brought on record. 6. Mr. Dhumale, the learned counsel for the respondent no.2 opposes the prayer for restoration of Second Appeal No. 208/1979. 7. Having heard the learned counsel for the parties, I am of the considered opinion, that this application deserves to be allowed. This court by earlier order had already declared the appeal abated in so far as the respondent no.1 is concerned. The question whether the appeal abates as a whole will have to be decided after hearing both the parties on merits. Therefore, the order dated 24.7.2006 is recalled and the Second Appeal No. 208/1979 is restored subject to payment of costs of Rs. 1000/- to respondent no.2 within a period of four weeks. The application stands disposed of accordingly. Judge patle 3`