Vinayak S/O. Ramaji Kaore, Through P.O.A. Arvind S/O. Vinayak Kaore v. Sharad S/O. Pandurang Adulwar, Through Lrs. Sharayu Wd/O. Shard Adulwar And Others

1 1.2017

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH : NAGPUR Appeal Against Order No. 1/2017 Vinayak S/o Ramaji Kaore Aged about 75 years. Occ.- Nil R/o Nr. Lakdipool, Telipura Nagpur, Tah. & Distt.- Nagpur ...Applicant Vs Sharad s/o Pandurang Adulwar through L.Rs.

1. a. Sharayu wd/o Sharad Adulwar Aged about 70 years. Occ.- Nil.

...Respondents

1.b. Sandip s/o Sharad Adulwar.

Aged about 35 years. Occ.- Service 1.c. Suwarna d/o Sharad Adulwar Aged about 30 years, Occ.- Household 1.d. Swapna d/o Sharad Adulwar Aged about 28 years. Occ.- Household All r/o Ramnagar hilt of Suryoday Bldg.

C-20, First Floor. Opp. Shabri Apartment Nagpur- 440 010 Shri P.K. Mishra & Shri A.P. Mishra, Adv for the appellant CORAM : S.B. Shukre, J.

DATE : 19.7.201 7 .

Oral Judgment Admit.

2] By consent of the parties heard finally.

2 1.2017 3] The applications vide exhibit nos. 8, 9 & 10 have been decided by common order dated 08-12-2015 by the District Magistrate-10, Nagpur. These applications were in relation to the setting aside abatement, condonation of delay for setting aside abatement for bringing the heirs of the deceased respondent filed by the appellant. In fact, the admitted position is that, there is no need for filing any application in relation to setting aside abatement of the appeal. The impugned decree was passed on 21st April, 2006 and thereafter on 3rd January, 2009, the original defendant or the original respondent expired. But, the appeal was filed in the year 2013. It was filed against a dead person and as such there could not have been any abatement of the appeal in this case.

But, such abatement was presumed by the appellant and accordingly the application for condonation of delay occurred in filing an appeal. The applications for setting aside the abatement of the appeal and application for condonation of delay in filing the appeal for bringing on record the legal heirs of the deceased vide exhibit nos. 8, 9 & 10 were filed. Since these applications were based upon the presumption that the appeal had abated against the original defendant, the applications were not maintainable.

3 1.2017 has only adverted to the reason given for justifying the delay occurred in filing these applications. However, the fact remains that these applications were not maintainable. If this is so, there would not be any reason for this Court to make any interference with the impugned order. However, in the interest of justice, it is necessary that the appellant is given liberty to file proper application explaining the delay occurred in filing an appeal and seeking condonation of day afresh in view of the law laid down by the Hon'ble apex Court in Gurcharan Singh Vs. Surjit Singh & Anr. reported in 2012(10), Scale 638.

4] In the situation, the appeal against order stands dismissed. However, liberty is granted to the appellant for filing a fresh application as stated above and if such any application is filed, the same shall be decided without influenced by earlier order of this Court. No Costs JUDGE A.P. Ansari