1 23sa667­07 rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURSIDICTION SECOND APPEAL NO.667 OF 2007 ALONGWITH CIVIL APPLICATION NO.780 OF 2007 Keraba Krishna Chougule (Since deceased through his LR's) and others .. Appellants V/s. Appa Linga Chougule (Since deceased through his LR's) and others .. Respondents ..... Mr. Ramdas Shelke i/b. Mr. S. G. Deshmukh for the appellants. Mr. G. M. Savagave for respondent Nos.1A to 1J. ..... CORAM : A.S.OKA, J. DATE : DECEMBER 2, 2011. P.C.: Heard the learned counsel appearing for the appellants and the learned counsel appearing for the respondent No.1A to 1J. The appellants are the original plaintiff Nos.1 and 3 in Regular Civil Suit No.28 of 1983. The suit was filed against the legal representatives of one Appa Linga Chougule who is the legal representatives of respondent no.1A to 1J. The second and third respondents herein are the original plaintiff Nos.2 and 4. The suit was decreed. The present respondent No.1A to 1J preferred Civil Appeal No.309 of 1996 in the District Court. One Namdeo (the original plaintiff No.2) was second 2 23sa667­07 respondent in the said Appeal. The said Namdeo died on 7th September, 2003. When the impugned Judgment and decree of the Appellate Court dated 27th December, 2010 was passed, the Appeal stood abated against the second respondent who was one of the plaintiffs. In view of the abatement, in fact, Appeal could not have been heard. In view of the abatement of the Appeal as against the respondent, the impugned Judgment and decree is nullity and hence the order of remand will have to be passed with liberty to the respondent No.1A to 1J to apply for setting aside the abatement. 2. Hence, I pass the following order: :: O R D E R :: i. The impugned Judgment and decree dated 20th December, 2006 passed in Regular Civil Appeal No.309 of 1996 is quashed and set aside and the Regular Civil Appeal No. 309 of 1996 is restored to the file of the District Court. The said Appeal stands abated as against the second respondent therein. ii. It will be open for the appellants in the said Appeal to apply for setting aside the abatement. If such application is made, the same shall be decided 3 23sa667­07 in accordance with law. iii. Second Appeal is partly allowed on the above terms with no order as to costs. iv. Civil Application No.780 of 2007 does not survive and the same is disposed of. (A.S.OKA, J.)