1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Civil Application (CAS) (Review/Recall) No.870 of 2010 In Second Appeal No.276 of 2008 (Shri Kailas s/o Vitthal Chavan v. Smt. Anjanabai wd/o Narayanrao Thorat and others) Office Notes, Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's order Shri S.D. Chande, Advocate for Applicant/Respondent No.23. Ms R.V. Kaliya, Advocate for Appellants. Coram : R.K. Deshpande, J. Dated : 30 th November, 2010 This is an application for review/recall of the order dated 3-3-2010 passed by this Court admitting the matter and granting an interim relief. The said order is reproduced below : “Heard Ms R.V. Kalia, Adv. for the appellant and Mr. A.M. Kukday, Adv. for respondent nos.36 to 38. The trial Court by its judgment and order dated 27.11.2003 passed in Regular Civil Suit No.115 of 1997 dismissed the suit filed for partition and separate possession of the suit property on the ground that one Keshav was the co-owner of the suit property and after his death, his legal heirs 2 were not brought on record. In the appeal, the learned Ad-hoc District Judge-1, Washim by his judgment and order dt.29.1.2008 reversed the judgment and order passed by the trial Court by holding that, Keshav who died during pendency of the appeal, was not a contesting and necessary party in the suit. The learned Counsel for the appellant has urged that the Appellate Court has committed an error in reversing the judgment of the trial Court. Admit – on the substantial question of law at sr.no.4 framed in the memo of appeal, which is reproduced below : “Whether in case of a suit for partition and separate possession of the property, the co-sharer are the necessary parties to the suit and whether the suit is bad and abated for non-joinder of necessary party?” Mr. A.M. Kukday, Adv. waives service of notices on behalf of respondent nos.36 to 38. CIVIL APPLICATION NO.4891 OF 2008 Heard. This is an application for grant of stay to the effect, operation and execution of the judgment and decree dt. 29.8.2008 passed in Regular Civil Appeal No.212 of 2003 by learned Ad-hoc District Judge, Washim. The decree is for partition and separate possession of the suit property. The appellants are claiming to be in possession of part of the property. Hence, there shall be an interim relief to the extent that possession of the appellants shall not be disturbed during pendency of this appeal. 3 It is, however, made clear that the proceedings of final decree for partition as directed by the Appellate Court shall continue.” Notices of the second appeal were issued by this Court on 22-7-2008. Thereafter the matter was adjourned from time to time and on 3-3-2010, it was heard and the order, as aforesaid, was passed. The present application is moved by the respondent No.23 for recall of the aforesaid order. The ground for seeking recall of the order is stated in para 4 of the additional affidavit dated 25-11-2010 of the respondent No.23, which is reproduced below : “ So far as concern with the Hon’ble High Court, why the present Respondent No.23 would not present in the High Court at the time of the admission of this matter because the present Respondent No.23 was married with other caste girl, therefore due to great apprehension to kill by the member of the both the family they run away to the Bombay and lived for near about four years, due to this reason the present Respondent No.23 would not present in the High Court at the time of the admission of this matter. The copy of the marriage card is annexed herewith and marked as ANNEXURE-A.” The matter was heard at length on 3-3-2010. The respondent No.23 was served. In spite of that, none appeared for him. After hearing the parties, who were present before this Court, the order was passed on 3-3-2010. The reason given for recall of the order in para 4 of the additional affidavit dated 25-11-2010 of respondent No.23, reproduced above, cannot 4 constitute the reason. There is no subsequent change in the situation after passing the order dated 3-3-2010. Hence, there is no reason to vary or reverse the order passed on 3-3-2010. In view of above, the present civil application is dismissed. The respondent No.23 is at liberty to file an application for urgent hearing. Judge pdl