1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD REVIEW PETITION NO.37 OF 2010 IN CIVIL APPLN.NOs.10892, 10896/2009 & 11369/2009 IN SECOND APPEAL NO.103/1991. 1) Hari s/o Lala Dimber (Died, appeal abated on account of his death) and another - RIVIEW PETITIONERS VERSUS Premchand s/o Fulchand Fulpagar (Died per L.Rs.)- 1) Sow.Pramila Wd/o Premchand Fulpagar and others. - RESPONDENTS ***** Mr.KG Khader,Adv, for Review Petitioner No.2; Mr.AP Bhandari,Adv. for Resp.Nos. 1 to 4. ----- CORAM : K.U.CHANDIWAL,J. DATE : 24th November,2010. PER COURT: 1) Heard extensively. 2) Review of order dated 13th January, 2010 is sought . 2 3) Mr.Khadar, learned Counsel for the review petitioners in his vibrant and enchanting submissions illustrated that the order of dismissal for default of the counsel of the appellant dated 14.10.2008, has been recorded with an unwitting illegality, as there was already abatement of the appeal owing to death of sole respondent having expired on 31.12.2003. He took recourse to the provisions of Order XXII Rule 4, 5 and 10A of CPC to impress his point. 4) According to learned Counsel, on 13th January, 2010, three applications of the appellant, should not have been dismissed as two of them were concerning with regard to bringing the legal representatives of sole respondent and also of the appellant no.1 – Hari s/o Lala Dimber. 5) The second limb of submission is, indeed on 14.10.2008, he was busy in attending the other matters, substantiated by Daily Board/Cause List published by the Local Advocates’ Bar Association. 6) Learned Counsel representing the legal representatives of sole respondent informs that this court is not required to dwell upon the earlier events, either of 14.10.2008 or prior thereto. The events project laxity of appellant. This Court was required to consider whether there was proper explanation of ten months' delay in 3 seeking restoration of the appeal, which stood dismissed on 14.10.2008. 7) The factual details referred to above are not in controversy. It could be appellant no.2-Parwatibai is old age lady could not keep track of death of sole respondent. However, this Court need not criticize her conduct or approve the same with sympathy. This Court has to look into legality of order dated 13.1.2010. It is apparent in paragraph 2, it is observed that the application does not disclose any reason as to why delay of more than ten months has occasioned in the exercise. The learned counsel was busy in arguing before another bench by itself was not a legal and justifiable reason to accede upon. These observations, will not be coming in the way of reviewing in terms of order 47 of CPC. No illegality or any material irregularity is surfaced in the said observation. No case of lack of due diligence by appellant or there is an error on the face of record. This Court is not sitting in appeal of the order dated 13th January, 2010. 8) Mr.Khadar, learned counsel, has relied to the judgment of this Court in the matter of Jaylaxmi Janardhan Walawalkar and Ors. Vs. Lilachand Laxmichand Kapasi and Ors, reported in 1998 (3) Mh.L.J. 618. His Lordship (as he then was) was considering the position of order 22 4 Rules 3, 4 and 9 CPC. An application was moved in terms of Order 1 Rule 10(2) of CPC to implead the legal representatives of the deceased as party. His Lordships observed, - “Legal consequence of abatement takes place if a party to suit dies and application for substitution is not made in time. Such legal consequence cannot be set at naught indirectly by invoking provisions of Order 1, Rule 10 or section 151 of the Civil Procedure Code by applying for impleadment of legal representatives of the deceased party at any time after suit has abated and the abatement has not been set aside.” The above observations need not be questioned, however, seldom apply to the factual matrix in the present case. 9) The learned Counsel also took recourse to the judgment of the Apex Court in the matter of State of Punjab Vs. Nathu Ram, reported in AIR 1962 SC 89. Their Lordships were dealing with the situation where abatement of appeal occasioned as against one respondent. However, as acquisition of land was jointly owned by two brothers and consequently, Their Lordships held that the appeal could not proceed against others. 5 No such eventuality is emerging in the present case. 10) Taking stock of above facts, though heart-touching submissions are advanced by learned Counsel for the review petitioners to review the order and setting aside the order of dismissal, however, on the above backdrop, I do not see any error in the order dated 13th January, 2010 to review or recall the same. The Review Application lacks merit, dismissed. No costs. (K.U.CHANDIWAL) JUDGE bdv/