1 S.A. no.1040.04 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.1040 OF 2004 Sakharam Shida Gophande ... Appellant V E R S U S Tukaram Mahadeo Gophane and others ... Respondents ... Mr. M.M.Patil,Advocate for Appellant Mr D.R.Jaybhar,Advocate for respondents ... CORAM : A.V. NIRGUDE, J. DATED : 11th JANUARY, 2010 PER COURT : 1] The respondent was original plaintiff in R.C.S.No.268 of 1993, which was filed before Civil Judge Junior Division, Ashti, District Beed for foreclosure of mortgage. But the trial Court dismissed the same on 14th August, 1997. Aggrieved by this, the respondent filed an appeal bearing Regular Civil Appeal No. 192 of 1997 in the Court of District Judge, Beed, who by his judgment and order dated 9th July, 2001 allowed the appeal. However, admittedly, on the day when the appeal was heard and decided, the respondent Tukaram (Original Plaintiff) was not alive. He was dead 2 S.A. no.1040.04 long back on 2nd July,1999. Unfortunately, this fact was not brought to the notice of the lower Appellate Court. As said above, the appeal was decided while the respondent was dead. 2] In view of this, the following substantial question of law would arise in this appeal I] Whether the impugned judgment and decree is a nullity in view of sole respondent's death, as the appeal which he had filed, had abated ? 3] By consent the appeal was taken up for hearing. As said above, it is not disputed that on 9th July,2001 the respondent-original plaintiff who was appellant in Regular Civil Appeal No.192 of 1997 was dead, therefore, the appeal on that day had abated and abated appeal could not have decided. Thus, the impugned judgment and decree deserve to be set aside. The parties, however, should get a fresh opportunity to agitate their case before the lower Appellate Court, since the original respondent is now replaced by his legal representatives. The learned counsel appearing 3 S.A. no.1040.04 for respondent's legal representatives assured that they would pursue the appeal if it is remanded back to the lower appeal Court. Hence, order: ORDER I] The appeal is allowed. II] The impugned judgment and decree in Regular Civil Appeal No. 192 of 1997 stands set aside. III] The appeal is remanded back to the Lower Appellate Court. The legal Representatives of original respondent, who would be the appellants in the lower Appellate Court are allowed to amend the title clause of the appeal bearing Regular Civil Appeal No. 192 of 1997. IV] The lower Appellate Court shall decide the appeal as soon as possible. Sd/- (A.V. NIRGUDE, J.) MTK/