: 1 : 6204-11-wp=.sxw USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6204 OF 2011 Shivaji Rama Ghadage & Ors. .. Petitioners v/s. Balu Naru Ghadage Since deceased through LRs & Anr. .. Respondents ......... Mr. Kuldeep S. Patil for the petitioners Mr. Bhushan Walimbe for respondent nos. 1A to 1F ......... CORAM : R.Y.GANOO, J DATE : 19th OCTOBER,2011. P.C. : 1. Heard learned advocates on both sides. In the partition suit namely R.C. Suit No.127 of 1986 filed in the Court of learned Civil Judge, Junior Division, Islampur by one Mr. Balu Ghadge came to be decreed. The present respondent nos. 1A to 1F are the heirs of said original plaintiff. The present petitioners filed an appeal against the said preliminary decree in the Court of learned District Judge­1, Islampur being R.C. Appeal No.55 : 2 : 6204-11-wp=.sxw of 2004. The petitioners appellants were required to take steps to serve the sole respondent i.e. Balu M. Ghadge. The bailiff’s report dated 6th September, 2004 indicated that said Balu is dead. Thereafter, no steps were taken by the petitioners to bring heirs of said Balu on record and as such learned District Judge­1, Islampur dismissed the Appeal on 16th September, 2008 as having abetted. Thereafter, the petitioners filed an Application dated 4th January, 2010 for setting aside abatement and for bringing heirs of said Balu on record. That application was rejected by the learned District Judge­1, Islampur by order dated 13th July, 2011. This order dated 13th July, 2011 is challenged in this petition. 2. Having heard learned advocates on both sides, I am inclined to dismiss the petition for following reasons. The petitioners were prompt in filing the Appeal however, conduct of the petitioners qua the prosecution of the Appeal clearly goes to show that the petitioners were diligent in attending to the matter. The reading of the record clearly goes to show that the petitioners did not take any steps to bring heirs of Balu on record and that is how practically after 4 years, the learned District Judge had no alternative but to declare that the appeal is abetted and dismissed the same. Even thereafter, petitioners did not take any steps. They claim that : 3 : 6204-11-wp=.sxw they came to know about dismissal of the Appeal only when notice of execution was served upon them. On what date the notice is served upon them is not mentioned in the application dated 4th January, 2011. It is only thereafter in January, 2010 he files an application for setting aside the abettment. 3. I have perused the text of the application. A reading of the said application clearly goes to show that the entire blame is passed on the advocate. The application does not say as to what steps the petitioners took to know as to what is happening in the matter. It may be that the petitioners’ advocate was negligent however, it was open to the petitioners to go to the concerned District Court and ascertain from the Court staff as to what stage the Appeal is pending. The stand taken by the petitioners that the advocate for the petitioners did not inform him about the developments in the appeal, cannot be accepted. The extent of delay which has occurred in the matter is beyond proportion and that is how the conduct of the petitioners clearly goes to show that they were not attending to the matter properly. : 4 : 6204-11-wp=.sxw 4. By the impugned order dated 13th July, 2011, the learned District Judge has appreciated all the facts in the proper perspective and has rightly arrived at conclusion that petitioners application could not have been granted. 5. It is pertinent to note that the petitioners as well as the main respondent Balu are near relatives. In such a case, the petitioners had no difficulty in knowing the fact of death of Mr. Balu. For all these reasons, I am inclined to observe that the learned District Judge­1, Islampur has arrived at proper conclusion. It was also pointed out by learned advocate Mr. Walimbe appearing on behalf of respondent nos.1A to 1F that the decree is already executed and his clients are put in possession of the property. This is one more aspect which goes against the petitioners. For the reasons mentioned aforesaid, the petition has to be dismissed and is accordingly dismissed at the stage of admission. There shall be no order as to costs. (R.Y.GANOO, J.)