14ca1423-11.sxw 1 spb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 1423 OF 2011 IN S.A. NO. 323 OF 2011 AND SECOND APPEAL NO. 323 OF 2011 Shri Omkar Gajanan Bhalerao & Anr. ... Applicants. V/s. Shri Baban Sadashiv Sonawane, since deceased through Lrs : 1a. Smt. Vanabai Baban Sonawane & Ors. ... Respondents. --- Mr. A.A. Garge for the Applicants. --- CORAM:- G.S. GODBOLE, J. DATED :- 19th OCTOBER, 2011. P.C. : 1 Heard Mr. Garge, Advocate for the Applicants. This Civil Application seeks following reliefs : a. That the order of abatement of the above Second Appeal, if any, be quashed and set aside. b. That the delay 5 years & 211 days in filing the above application be kindly condoned. 14ca1423-11.sxw 2 c. That the Respondent Smt. Vanabai Baban Sonawane, Shri Shrikushna Baban Sonawane, Shri Dhanesh Baban Sonawane, Smt. Shantabai Kondiba Bhalerao, Smt. Kantabai Shantaram Pawar, Smt. Lata Sudam Kasabe, Smt. Meera Kondaji Gaiekwad, Smt. Sunita Rajendra Kharat, Smt. Sangita Sunil Shinde, Smt. Shobha Prakash Kharat i.e. respondent no. 1a. to 1j. be shown as legal heirs and representatives of the deceased respondent no.1 Shri Baban Sadashiv Sonawane and the cause title of the Second Appeal be amended accordingly. 2 Perusal of the record shows that the Second Appeal arise out of R.C.S. No. 104/1991. In that Suit said Baban Sadashiv Sonawane was a sole Defendant. Suit was dismissed on 31.03.2005. The original Plaintiffs filed Civil Appeal No. 294/2005 which has been dismissed on 29.10.2010. However, in the meantime, on 19.11.2005 the sole Defendant who was sole Respondent in Civil Appeal No. 294/2005 has died. Consequently, the Civil Appeal No. 294/2005 has abated. In view of this, there is no question of bringing heirs of the said Baban Sadashiv Sonawane on the record in the Second Appeal. Following the Judgment of the Supreme Court in the case of Jaladi Saguna vs. Satya Sai Central Trust & Ors., 2008 (7) SCR 734, it is clear that the impugned Judgment and Decree dated 29.10.2010 passed in the Civil Appeal No.294/2005 was a nullity. 14ca1423-11.sxw 3 Consequently, the Judgment and Decree of the Trial Court, dismissing the suit is the only Judgment and Decree which will survive. 3 Hence, not only the Civil Application but Second Appeal No. 323 of 2011 is also dismissed with no order as to costs. It is clarified that this will not preclude the Appellants from filing an appropriate Application in Reg. Civil Appeal No. 294/2005 for setting aside abatement of the said Appeal as against the sole Respondent Baban Sadashiv Sonawane and for restoration of the Appeal after condoning the delay for setting aside abatement. If and when such Application is filed, the same will be heard by the Appellate Court on its own merits. No orders as to costs. [G. S. GODBOLE, J.]