1. Heard Mr. Talkute, Advocate for the Appellants and Mr. Umesh Mankapure, Advocate for the Respondent Nos. 1 to 3.

2. On 12/9/2011 following order was passed:

“1. Heard Mr. Talkute, Advoate for the Applicants and Mr. Mankapure, Advocate for Respondents. Copy is not served on the Advocate Mr. Mankapure.

2. Considering the prayers in these Civil Applications, the same are being disposed off by hearing Advocate Mr. Talkute. Respondent No. 5 Bhagirathibai Maruti Dhane died on 15/4/2009 and Respondent No. 6 Gangubai Khashaba Kurne died on 6/1/2008; both during the pendency of the Civil Appeal No. 149 of 2004 in the District Court at Satara. Hence, abatement, if any, as against them, has taken place in the District Court itself and hence, there is no question of either delay or setting aside abatement. In view of this, both the Civil Applications are dismissed as not maintainable.

3. The question regarding the legal effect of the death of the said Respondents on the merits of the aforesaid Appeal in the District Court will be considered at the time of hearing the Second Appeal for admission, which is not yet admitted. For that purpose, retain a copy of this order in the original order sheet of the Second Appeal.

4. Place the Second Appeal for admission after 4 weeks.”

Accordingly Appeal is placed for admission.

3. The Second Appeal is admitted by framing following questions of law:

(a) Whether on account of the death of Bhagirathi (original Defendant No. 3) and Gangubai (original Defendant No. 6) during the pendency of the Regular Civil Appeal No. 149 of 2004 in the District Court at Satara, which Appeal arose out of a Suit for partition and separate possession, the said Appeal would abate only qua the deceased Defendants who were Appellant Nos. 3 and 6 in the said Appeal or whether the entire Appeal would abate?

(b) If the entire Appeal abates, whether the impugned Judgment and Decree dated 30th March, 2010 passed by the learned Extra Joint Ad-hoc District Judge, Satara in Regular Civil Appeal No. 149 of 2004 is a nullity?

4. The Second Appeal is taken up on board for final hearing forthwith with the consent of the Advocates for the Appellants and the Respondent Nos. 1 to 3. Respondent Nos. 5 and 6 are deceased Bhagirathi and Gangubai and the Appeal in the District Court had abated qua them and hence they are unnecessarily joined as parties. The Respondent No. 4 had been impleaded in the Suit in his capacity as Trustee of Defendant No. 7 which was a formal Defendant and had been proceeded exparte both in the Suit and in the Appeal in the District Court. Hence on the application of the Advocate for the Appellants, service on the said Respondent No. 7 is waived as the same is completely unnecessary. I have therefore, proceeded to hear the Appeal on the aforesaid 2 questions of law which have been framed.

5. Said Bhagirathibai Maruti Dhane was original Defendant No. 3 and Gangubai Khashaba Kurne was original Defendant No. 6 and both had been granted 8.125 units share out of 100 Units in Civil Appeal No. 149 of 2004. Bhagirathibai and Gangubai were Appellant No. 3 and 6 respectively. Since both of them had died during the pendency of the Appeal in the District Court, the Appeal had abated as against them. The legal effect of such situation is no longer res integra and I propose to indicate the reasons for holding that the Civil Appeal No. 149 of 2004 abates in its entirety in the District Court itself and consequently Judgment and Decree of the Trial Court had attained finality.

6. In BudhRam & ors. v/s Bansi & & Ors AIR 2010 SCW 5071,the Supreme Court has held thus:

12. Abatement takes place automatically by application of law without any order of the court. Setting aside of abatement can be sought once the suit stands abated. Abatement in fact results in denial to hearing of the case on merits. Order XXII Rule 1 CPC deals with the question of abatement on the death of the plaintiff or of the defendant in a Civil Suit. Orde