1 8.ca-1800-07 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION jmi CIVIL APPLICATION NO. 1800 OF 2007 IN SECOND APPEAL (STAMP) NO. 11350 OF 2006. Pandurang Kushaba Kumbhar & Ors. ..Applicants. vs. Jagannath Sitaram Kumbhar & Ors. ..Respondents. .... Mr. Vikas M. Mali, for Applicants. Mr. Dilip Bodake, for Respondent No.4, 5, 6A, 6B, 7 & 10A. .... CORAM : G.S. GODBOLE, J. DATE : 26TH AUGUST 2011. P.C. : By this Application, following three substantive reliefs are claimed :- “(a) This Hon’ble Court may be pleased to bring the legal heirs of deceased respondent no.1 viz. Jagannath Sitaram Kumbhar, respondent no.2 viz. Haibati Rama Kumbhar and respondent no. 8 viz. Laxman Govind Kumbhar on record as per the details given in paragraph nos. 8, 9 and 10 of this Civil Application. (b) That this Hon’ble Court be pleased to condone the delay in filing the present application. (c) The abatement of Appeal if any be kindly set aside.” 2. Mr. Dilip Bodake objects to the maintainability of the said composite Civil Application. 3. The Trial Court Judgment was delivered on 31st July 1992 and 2 8.ca-1800-07 the Suit was dismissed, some of the original Plaintiffs filed Appeal which was allowed by the District Court on 10th January 2003. This Second Appeal along with Application for condonatoin of delay is filed on 3rd May 2006. 4. In so far as the Respondent No. 2 Haibati Rama Kumbhar is concerned, he was originally Plaintiff No. 2 in the Suit and the Appellant No. 2 in the Regular Civil Appeal No. 449 of 1992 and there is no dispute that he died on 15th February 2002 pending the Appeal in the District Court in a Suit for declaration and injunction. Hence, there is no question of bringing heirs of Respondent No.2 Haibati on record of the Second Appeal inasmuch as qua that person, Regular Civil Appeal No. 449 of 1992 had abated. The legal consequence of such abatement of the Appeal in the District Court will have to be considered if the delay in filing this Second Appeal is condoned and the Second Appeal is to be heard for Admission. For this reason, the Applicants have no obligation in law to bring the heirs of the deceased Respondent No.2 on record. 5. In so far as deceased Respondent No. 1 Jagannath Kumbhar (original Plaintiff No.1) and deceased Respondent No. 8 Laxman Kumbhar (original Plaintiff No. 9) are concerned, they have died on 5th February 2005 and 21st January 2004 respectively, that is after the delivery of the impugned Judgment on 10th January 2003. Hence, in that sense, there may not be any abatement even against the said Respondents since they had died prior to the filing of the Second Appeal. However, the Appellants will have to file appropriate Application under Order I Rule 10 of the Code of Civil Procedure, 1908 in so far as the heirs of the said Respondents are concerned and also join them as party Respondents in the Civil Application for condonation 3 8.ca-1800-07 of delay so that they can be heard in opposition to the request for condoning the delay. In view of this, by granting liberty to the Applicants to file appropriate Application as stated above for joining Respondent Nos. 1A to 1D and 8A and 8B in this Civil Application as party in the Civil Application for condonation of delay and the Second Appeal, this Civil Application is disposed of. [ G.S. GODBOLE, J. ]