1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, APPELLATE SIDE NAGPUR BENCH, NAGPUR Civil Application No. 710 of 2007 Koteshwar Deosthan & Ors. Vs. Kamlabai Kamalsingh Khangar & Ors. Office Notes, Office Memoranda of Coram, appearances, Court orders or directions and Registrar's orders Court's or Judge's orders Shri Prashant Gode, Adv. for appellant. CORAM: C. L. PANGARKAR J. Dated: 24 th April, 2008. This is an application for condonation of delay in preferring an appeal against the judgment and decree passed by the first appellate Court. The appellants were infact not party to the proceedings either before the trial Court or before first appellate Court. Appellant is a public trust and No. 2 to 2 5 are said to be trustees of the said trust. It is alleged that respondent had instituted a suit for declaration and possession of a water tank against 4 persons. The trial Court while deciding the suit had framed issues as to whether Koteshwar Deosthan is a public trust? Whether it was necessary party to the suit and it found that it was a public trust and a suit was bad for non joinder of party. It was also found that suit was not maintainable without the permission of the Charity Commissioner. It appears that original defendant in the suit had raised a plea before the learned Civil Judge about the suit being not maintainable without the permission of the Charity Commissioner since the property belongs to the Koteshwar Deosthan and the suit was bad for non joinder of the necessary party. During the pendency of the suit it 3 appears that out of the 4, two defendants died. The learned Civil Judge after having recorded those findings dismissed the suit. Plaintiff therefore preferred an appeal. In the appeal only two persons were made respondents since the other two had died. It is stated by the learned counsel for the appellant that out of these two persons Pandurang Narnaware i.e. respondent No.1 in the first appeal had died and therefore his name was deleted and the other person was removed from trusteeship. He therefore submits that none of the respondents had in fact represented in the appeal. The judgment of the appellate Court does show that nobody had represented the respondent. Trial Court had in fact recorded a finding that the property belongs to Koteshwar Deosthan and that it was necessary party to the suit. 4 Learned counsel for the appellant submits that since one person was removed and all other defendants had died the trust and the trustees did not know of decision in the appeal. In view of this I find that appellant came to know of the judgment and decree of the first appellate Court only when the appellant received the notice from the Joint Charity Commissioner and thereafter this appeal came to be preferred. In view of the fact that trust was not represented in the first appeal it has to be said that the said trust must have come to know of the appeal having been decided only when it received a notice. Time had therefore started running from the date of knowledge of the decision in the appeal and in view of this delay in preferring the appeal stands condoned. JUDGE 5 svk