gst 1 wp170.11.sxw IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION. WRIT PETITION NO. 170 OF 2011. Deepak Ramchand Rajput.... .... ..... ....Petitioner. V/s Virtanaya Madhav Rupji & Ors. .... ..... ..Respondents. Mr.P.R.Naidu, Adv. For the petitioner. Mr.Dhirendra Gautam i/by MHA Sayyed, Adv. For respondents. CORAM: B.R. GAVAI, J. 17th March, 2011 PC: The petitioner challenges the order dated 4.12.10 vide which notice of motion taken out by the present petitioner in Chamber Summons taken out by plaintiff for determination of mesne profits came to be rejected. It appears that there is a decree of eviction and possession passed against the present petitioner. Being aggrieved thereby an appeal has been filed. In the appeal initially stay was granted to the execution of the entire decree. However it appears from the order dated 2.3.09 in Civil Application No.3453/05 that this Court has modified the interim order and permitted the applicant i.e. the plaintiff to file an application for determination of mesne profits in the trial Court and the learned trial Court was directed to examine the same in accordance with law. 2. Accordingly Chamber Summons has been taken out for determination of mesne profits by the respondents. In the said chamber summons notice of motion is taken out by the present petitioner contending therein that during pendency of appeal plaintiff No.1 had died and without taking appropriate steps for bringing his legal heirs on record chamber summons was taken out on behalf of legal heirs of plaintiff No.1. Same is rejected. gst 2 wp170.11.sxw 3. Shri Naidu, leanred counsel appearing for the petitioners submits that unless the legal heirs of the deceased-plaintiff No.1 were brought on record the application by the legal heirs for mesne profits was not tenable. 4. Learned counsel for the respondent vehemently opposes the petition and submits that the petitioners on one pretext or the other are trying the protract the proceedings for determination of mesne profits. 5. Learned trial Court has found that original suit was filed on behalf of two plaintiffs and as such on death of one plaintiff suit does not abate. It is further pointed out that this Court had granted liberty to the decree holder to file an application for mesne profits. Learned trial Court has further found that proceedings were in the nature execution proceedings and as such the objection raised by the defendants was without any substance. It has further been found by the learned trial Court that the defendants were not denying that the legal heirs were legal heirs of the deceased-plaintiff but were only objecting on technical ground that unless they are duly substituted in the suit the application for mesne profits could not be tenable. 6. The learned counsel for the petitioner relies on a judgment of learned Single Judge in the case of Jayalaxmi Janardhan Walawalkar & Ors. Vs. Lilachand Laxmichand Kapasi & Ors., 1998 (3) Mh.L.J. 618. In so far as the said judgment is concerned, in the said matter a decree for eviction was passed in favour of decree holder-Janardhan in the execution proceedings initiated by the decree holder and one Lalchand obstructed the execution of the said decree. Before the decree could be executed against the obstructionist the decree holder-Janardhan died. Thereafter the obstructionist filed Regular Declaratory Suit against Janardhan and obtained an injunction restraining the decree holder from executing the said decree. After death of Janrdhan, Lalchand filed a suit for declaration against him but did not take any steps to bring legal representatives of deceased Janardhan on record. As such an application was made by the legal heirs of deceased Janardhan that suit filed by Lalchand was gst 3 wp170.11.sxw abated. Thereafter an application was made by the said Lalchand for impleading the legal heirs of deceased Janardhan as party-defendants. Same was allowed by the learned trial Court. IN that view of the matter learned Single Judge held that if appropriate steps are not taken for substitution and for bringing legal heirs of deceased person on record in time, when right to sue survives, the abatement of suit takes place automatically. 7. In the present case it can clearly be seen that the suit is admittedly filed by two plaintiffs and even though one of the plaintiff dies suit will not stand abated against other plaintiff and the application at the behest of the said plaintiff would be very much tenable. 8. No perversity could be noticed in the impugned order to warrant interference. Hence writ petition stands dismissed.