1 CA5095/11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CIVIL APPLICATION NO. 5095 OF 2011 IN SECOND APPEAL (ST) NO. 811 OF 2011 Syed Laddu s/o Syed Kadu & Anr Applicants V E R S U S Hujarabee w/o Sk Abdul Rehman & Ors Respondents Mr. N.T. Tribhuwan, Advocate for the applicants Mr. Mustaba Gulam Mustaffa, Advocate for respondent No.1 CORAM : A.V. NIRGUDE, J. DATED : 7th June, 2011 PER COURT : 1. Only appellant Nos. 6 and 7 and not all of them seek permission to withdraw the appeal and further seek permission to file appropriate proceeding before the learned Judge of the first Appeal Court for setting aside of the exparte Judgment and decree he passed in the first appeal. 2. I am not inclined to allow this application mainly because all the appellants opposed the respondents’ suit jointly by filing joint written statement and adducing evidence jointly. They had a common defence. The respondent is their aunt (father’s sister), who had filed this suit for partition of ancestral property. The first appeal was filed by the respondents and the appellants No. 1 to 5 opposed the appeal on merits. It is said that the appellant Nos. 6 and 7 were not properly served. The present application is moved only because the appellant Nos. 6 and 7 now stand to lose their opportunity to oppose the first appeal on merits. But, I am not inclined to accept this suggestion, because practically their case was 2 CA5095/11 represented by the remaining appellants, and so, this second appeal would decide the fate of the litigation. It will not be appropriate to split this litigation to avoid divergent Judgments. In view of this, application stands rejected. ( A.V. NIRGUDE, J. ) SRM/ca/5095/11/7/6/11