1

IN THE HIGH COURT OF JUDICATURE

AT BOMBAY

CIVIL APPELLATE JURISDICTION

CIVIL APPLICATION NO.4104 OF 2009

IN

FIRST APPEAL NO.951 OF 1991

Jama Masjid Trust thru its

’

......

Applicants

its trustees Ibrahim Patel

& Ors.

Vs.

State & Ors.

......

Respondents

Mr. D.S. Sawant, Advocate for Applicants.

Mr. A.R. Patil, AGP for State

CORAM : Smt. R.P. SondurBaldota, J.

Date : 26^th March, 2010

P.C. :

1.

This Civil Application is taken out for recalling the order dated

28^th November 2006 and for restoration of the First Appeal No.951 of

1991 after condoning delay in filing the application. The learned AGP

submits that the Civil Application as filed is not maintenable.

2.

The order which is sought to be recalled records death of

appellants no. 2 and 3 and takes note that no steps were taken by

appellant no.1 or his Advocate to bring the heirs and legal

representatives of appellants no.2 and 3 on record. The order also

states that looking to the nature of the order impugned in the appeal,

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the appeal abates in its entirety. The appeal therefore was dismissed

as such.

3.

Mr.Sawant, the learned counsel for the applicants submits that

the order is not correct in recording that appellant no.1 was required to

bring the heirs and legal representatives of deceased appellants nos. 2

and 3 on record. He points out that the appeal was by a trust filed

through its trustees. Appellants no. 2 and 3 being the trustees, there

was no question of bringing their heirs on record. The appellant no.1

was required to bring on record the trustees appointed in place of

appellants no. 2 and 3. If according to the applicant, there is error in

the order apparent on record, the needs to take recourse to the

appropriate remedy of filing an application for review. The applicants

could also have challenged the order in the higher court. However, civil

application for recalling of such an order is not maintenable. In that

circumstance, the Civil Application is dismissed.

3.

In view of dismissal of the Civil Application NO.4104 of 2009, the

Civil Application NO.4105 of 2009 does not survive, the same is

accordingly dismissed.

(Smt. R.P. SondurBaldota,J.)