: 1 : Dixit IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.153 OF 1989 SECOND APPEAL NO.153 OF 1989 SECOND APPEAL NO.153 OF 1989 Honappa Gurningappa Mededar ...Appellant V/s. 1.Lakappa Shivagonda Balagaon; 2.Subhadra Shivagonda Balagaon; 3.Nilakka Shankar Kanjagi; 4.Laxmibai Shivgonda Balagaon ...Respondents Mr.S.G. Deshmukh, Advocate, for the Appellant. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. DATE : 10TH JANUARY, 2008. DATE : 10TH JANUARY, 2008. DATE : 10TH JANUARY, 2008. JUDGMENT :- JUDGMENT :- JUDGMENT :- 1. Heard the learned Advocate for the appellant. The Appellant is the original defendant No.3. The respondent Nos.1 to 4 are the original plaintiffs and the respondent Nos.5 and 6 are the original defendant Nos.1 and 2. 2. The Trial Court has passed a decree for partition holding that the plaintiffs were having 2/3rd share in the suit land and suit house. The Trial Court held that the 1st and 2nd defendants are having 1/6th share. The decree of the Trial Court has been confirmed by the 1st Appellate Court in an Appeal which was preferred by the 1st and 2nd defendants. : 2 : 3. The perusal of the record of the Second Appeal shows that the Second Appeal stands dismissed for non-prosecution as against respondent Nos.5 and 6 as per order dated 22nd July, 2005 passed by this Court. 4. The Advocate for the appellant states that though the appellant had obtained time from the Court for taking steps for getting the Appeal restored against the respondent Nos.5 and 6, the appellant has not come forward to make necessary application inspite of an intimation. Thus, the net effect is that decree for partition has become final insofar as the original defendant Nos.1 and 2 (respondent Nos.5 and 6) are concerned. Even if appellant is to succeed in the Appeal, it will not be possible to pass a decree which will be inconsistent with the decree which has attained finality insofar as defendant Nos.5 and 6 are concerned. Hence, the Appeal cannot proceed and the same will have to be dismissed. 5. Second Appeal is accordingly dismissed. No order as to costs. [ABHAY S. OKA, J.] [ABHAY S. OKA, J.] [ABHAY S. OKA, J.]