JUDGMENT

Dr. ARIJIT PASAYAT, J.

1.Leave granted.

2.Challenge in this appeal is to the order passed by a learned Single Judge of the Bombay High Court in the Second Appeal filed by the appellant; the defendant no.3 in Special Civil Suit No. 42 of 1981; before the High Court under Section 100 of the Code of Civil Procedure, 1908 (in short CPC ). During pendecny of the appeal, an application was filed in terms of Order XLI Rule 19 of the CPC for setting aside the order dated 20.3.1987 passed by the learned Additional Registrar whereby he dismissed the second appeal against respondent nos.3 and 6 for non-prosecution. The prayer was also made to show the names of the applicant i.e. present appellant and respondent nos.5 to 7 in the second appeal as legal representatives of the deceased-respondent No.3. By the impugned order the High Court while accepting the prayer vis-`-vis respondent no.6 dismissed the same so far as respondent No.3 is concerned.

3.A brief reference to the factual aspects would be necessary:The suit plot was owned by one Shivram i.e. the father of the appellant and respondent no.3. Name of respondent no.3 Tarabai was shown as nominee in the Cooperative Housing Society s record. After the death of Shivram the suit plot was transferred in the name of Tarabai. She purportedly entered into an agreement to sale with original plaintiffs 1 and 2 i.e. the present respondents 1 and 2. As Tarabai did not execute the sale deed in pursuance of the said sale agreement, the plaintiffs filed the suit against Tarabai and her three sons and one daughter i.e. original defendants 3 to 6. The Cooperative Society was also impleaded as defendant no.2. Tarabai filed written statement and denied claim of the plaintiffs. Defendant no.3 i.e. appellant denied the suit claim and contended that Tarabai was, as stated in the written statement, only a nominee and no exclusive ownership right was vested in her. The trial court came to the conclusion that Tarabai had executed the agreement of sale and she committed breach in collusion with the other defendants. Therefore, the defendants 1 and 3 were directed to execute the sale deed in favour of the plaintiff.Being aggrieved by the said order, Tarabai as well as the present appellant and the Cooperative Society filed Civil Appeal No.772 of 1984. However, the appeal was dismissed and trial Court s decree was confirmed. Being aggrieved, the appellant filed the Second Appeal against the original plaintiffs, Cooperative Society and the respondents 3 to 7 i.e. defendants 1 to 4, 5 and 6. The said appeal was admitted by the High Court on 20.6.1986 and stay on the lower court s decree was granted.

4.It appears from the record that respondents 1, 2 and 4 were served personally while respondent no.3 was served by affixing the notice with bailiff remarks gone on duty . Notice to the respondent no.6 was also returned unserved with remarks incomplete address . The High Court noticed that in terms of the provisions of Rule 6(id) of Chapter 7 of Bombay High Court Appeal Rules, 1960, the appellant was required to give postal stamps within the stipulated period. That was not done. The Additional Registrar dismissed the appeal in respect of Tarabai (respondent No.3 in the Second Appeal) and respondent no.6 for want of prosecution by order dated 20.3.1987. It also appears that the appeal was dismissed for non-removal of objections. An application for restoration was filed and the appeal was restored on 6.4.1999 by setting aside the order dated 10.11.1997. At that time the appellant made a statement that Second Appeal has abated against respondents 5 and 7 and he was pressing civil application for restoration only against respondent nos.1 and 2. It was accordingly restored.

5.Subsequently, it appears that the advocate who was earlier appearing left the practice. When another advocate appeared, she found that record was not traceable and ultimately an application was filed before the High Court in