1 WP 7002.2009 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 7002 OF 2009 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders Mr. S.S.Choudhari ,Advocate for the Petitioner. Mr.M.V.Deshpande, Advocate for Resp.Nos. 1 to 3. .......................... CORAM : S.V. GANGAPURWALA, J. DATE : 06/06/2011 PER COURT : 1. Heard the learned counsel for the respective parties. 2. Mr. Choudhari, the learned counsel for the petitioners submits that the trial court has committed an error in rejecting the application of the present petitioners for dismissal of the Suit on the ground that as the legal heirs are not brought on record, the Suit already stood abated. The question of deleting the names of respondent nos. 1 and 2 does arise. The learned counsel also contends that the amendment application filed by the original plaintiff has been erroneously allowed as the said amendment would change the nature of 2 WP 7002.2009 the Suit. 3. Mr. Deshpande, the learned counsel for the respondent nos. 1 to 3 submits that it is the present petitioners, who had preferred Appeal and in the Appeal while remanding the matter, the appellate court directed the petitioner to be added as party. The right to sue survives as against the present petitioners. The property has been disposed of by the respondent nos. 1 and 2 in favour of the petitioners during the pendency of the Suit and as such the relief prayed for declaration regarding the sale deed is justifiable and would not change the nature of the Suit. 4. The Suit filed by the plaintiff came to be decreed on 18/11/2003. The decree was put to execution by the plaintiff. After the execution was filed, the present petitioners preferred an Appeal. The appellate court partly allowed the Appeal and remanded the matter to the trial Court with further direction that the present petitioners should be added as parties. The defendant nos. 1 and 2 expired on 20/1/2004 and 12/12/2005 respectively i.e. after the decree was passed in the Suit. The right to sue survives. More over, the petitioners preferred an Appeal and had got the 3 WP 7002.2009 order of the Appeal being remanded and that they should be added as parties. Even as per Order XXII Rule 10 of the Code of Civil Procedure, the petitioners would have interest in the property as they are purchasers pendente lite. 5. The amendment sought also does not change the nature of the Suit and would be merely consequential, as by way of amendment, declaration is sought regarding the sale deeds which were effectuated during the pendency of the Suit. 6. In the result, no error of jurisdiction has been committed by the trial court. The Writ Petition as such is dismissed, however with no order as to costs. [ S.V. GANGAPURWALA,J. ] KNP/WP 7002.2009