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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

925 CIVIL APPLICATION NO.3559 OF 2019

IN SAST/5393/2019

WITH

CA/3560/2019 IN SAST/5393/2019

VISHNU BABU MATALE DIED THROUGH LRS VANDANA VISHNU

MATALE

VERSUS

CHIEF EXECUTIVE OFFICER AND OTHERS

...

Advocate for Applicants : Mr. Savant Vilas P.

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CORAM : SMT.VIBHA KANKANWADI,J.

DATE : 5

^th

February, 2021.

PER COURT:-

1.

Steps have not been taken by the applicant-

appellant though it appears that continuously for two

dates statement was made on behalf of the applicant

that steps would be taken.

2.

This Court had dismissed the application

against Respondent Nos.2 and 4 by order dated

27.6.2019.

3.

Perusal of the judgment and decre passed in

RCS No.135/2006 would show that present applicant is

plaintiff, who filed the said suit for declaration,

partition and seperate possession. It was his

contention that his father expired in the year 1952,

leaving behind the suit property. Thereafter in 2005,

he realized that his brother – Murlidhar had sold

certain portion of the said property by sale-deed dated

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16.12.1974 to defendant No.4. Defendant No.4 mutated

the said property in the name of his son – deft.No.5.

The defendant No.5 donated the said land in favour of

defendant No.1. It is stated that name of defendant

No.2, i.e. Gramsevak is mutated. The said suit was

before the Civil Judge, JD, Karjat and it came to be

dismissed. As aforesaid, the plaintiff was praying for

declaration that defendants Gift-deed dated 6.12.2005

is not binding on him as well as defendant No.3. He

was then praying for seperate possesion of his 1/3rd

share and possession therof. That means, the decree,

that he was praying, was joint and several. After the

said suit was dismissed, the original plaintiff’s legal

heirs filed Regular Civil Appeal No.34/2010 before the

learned Principal District Judge, Ahmednagar and the

said appeal came to be dismissed on 15.6.2016. Now,

one of the legal heirs of the original plaintiff,

intends to file a Second Appeal, however, there is

delay of 884 days and, therefore, the present

application has been filed by the applicant-appellant

seeking condonation of the said delay.

4.

A conditional order was passed by this Court

on 27.6.2019 as steps were not taken against the

unserved respondents, i.e. Respondent Nos.2 and 4, who

were original defendant Nos.2 and 4. Even till today,

no steps have been taken. The Second Appeal cannot

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proceed against the remaining respondents. The said

situation can be equated to the situation in case of

abatement of appeal, if any of the respondents expires

since the decree that was prayed for was joint and

several.

5.

Observations in the case of State of Punjab

Vs. Nathuram – AIR 1962 SC 89 may be referred here,

wherein the Hon’ble Apex Court observed thus -

”when 0rder XXII, Rule 4 does not provide

for the abatement of the appeals against

the co-respondents of the deceased

respondent, there can be no question of

abatement of the appeals against them.

The only question is whether the appeal

can proceed against them. The provisions

of 0rder I Rule 9 CPC, also show that if

the Court can deal with the matter in

controversy so far as regards the rights

and interests of the appellant and the

respondents other than the deceased

respondent it has to proceed with the

appeal and decide it. It is only when it

is not possible for the Court to deal

with such matters that it will have to

refuse to proced further with the appeal

and therefore dismiss it. The question

whether a Court can deal with such

matters or not, will depend on the facts

of each case and therefore no exhaustive

statement can be made about the

circumstances when this is possible or is

not possible. It may, however, be stated

that ordinarily the considerations which

weigh with the Court in deciding upon

this question are whether the appeal

between the appellants and the

respondents other than the deceased can

be said to be p