Partly allowed

Babu Sada Gaikwad v. Shrimant Bahiru Gavhane

Bombay HC23 Jul 2012SA/458/1990

Case brief

AI extract

What is this about?

The High Court in second appeal directed the quashing of the District Court decree to allow appellants to apply for setting aside abatement of the first appeal caused by the death of a third respondent. The matter is remanded to the District Court for fresh proceedings on merits if abatement is set aside.

What did the court decide?

Impugned Judgment and Decree quashed and appeal remanded to District Court to decide afresh on merits if abatement is set aside within six weeks.

Babu Sada Gaikwad Vs Shrimant Bahiru Gavhane — Partition | Bombay HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CIVIL APPELLATE JURISDICTION

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SECOND APPEAL NO. 458 OF	1990.
1. Babu Sada Gaikwad, died during the pendency of Suit, by his heirs and in their individual capacity.
2. Aba Babu Gaikwad, Residing at Hingani, Taluka Barsi.
3. Ghiwala Babu Gaikwad, Residing at Hingani, Taluka Barsi.
4. Lochanbai Babu Gaikwad, Residing at Hingani, Taluka Barsi.	..Appellants.
vs.
1. Shrimant Bahiru Gavhane, Residing at Hingani (P), Taluka Barsi, District-Solapur.
2. Abasaheb Bahiru Gavhane, Residing at Hingani (P), Taluka Barsi, District-Solapur.
3. Bahiru Maruti Gavhane, Residing at Hingani (P), Taluka Barsi, District-Solapur.	..Respondents.
.... Mr. S.G. Kudle, for Appellants. None for Respondents. ....

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CORAM :- A. S. OKA, J. DATE :- 23RD JULY, 2012.

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ORAL JUDGMENT :

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Heard the learned counsel appearing for the appellants. The

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appellants are the original plaintiffs and the respondents are the original defendants. The appellants filed a suit for possession of the suit land and in the alternative, prayed for partition and separate possession of their respective shares. The Trial Court dismissed the suit. The appellants preferred an appeal before the District Court. It appears that during the pendency of the said appeal, the third respondent (original third defendant) died on 25^th May 1989. Admittedly, an application for bringing on record the legal representatives of the third respondent was not made within the stipulated period. By the impugned judgment and decree, the District Court dismissed the appeal on 26^th March 1990.

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While filing the second appeal, the respondent no. 3 who was already dead was made a party to the appeal. On 4^th February 2011, this Court noticed that the third respondent was reported to be dead. This Court, therefore, directed that if appropriate steps were not taken within a period of four weeks from the date of order, the appeal shall stand abated against third respondent. It appears that Civil Application No. 380 of 2011 was filed by the appellants before this Court for bringing on record the legal representatives of the deceased third respondent. The said application was rejected by this Court by order dated 20^th September 2011. It appears that an application for review was made by the appellants, which was dismissed by order dated 31^st January 2012.

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The learned counsel appearing for the appellants submits that during the pendency of the appeal in the District Court it was not

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pointed out that the third respondent had died. He submitted that no notice as contemplated under Rule 10-A of Order XXII of Code of Civil Procedure, 1908 was served to the appellants during the pendency of the appeal in the District Court, though the respondents were represented by an Advocate. His submission is that though by operation of law, the appeal before the District Court abated as against the third respondent, steps could not be taken by the appellants as there was no compliance with Rule 10A of Order XXII of the said Code. He submitted that the appellants had no opportunity to apply before the first Appellate Court for setting aside the abatement of the appeal as against third respondent for want of knowledge of death of third respondent. Thus, in short, his submission is that an opportunity be given to the appellants to apply for setting aside the abatement of the appeal preferred by them before the First Appellate Court. None appears for the respondents.

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While passing order dated 20^th September 2011 in Civil Application No. 380 of 2011, this Court has observed that as the third respondent has died during the pendency of the appeal in the District Court, there is no question of abatement of the second appeal as against the third respondent and in fact, appeal in the District Court stood abated as against the third respondent. Perusal of the judgment of the First Appellate Court shows that the respondents in the appeal before the First Appellate Court were represented by an Advocate.

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The learned counsel appearing for the appellants pointed out

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that in the suit there is a prayer made in the alternative even for the partition and separate possession of the suit properties. In view of the prayer for partition and separate possession, as a result of the abatement of the appeal as against the third respondent, the entire suit and consequently the appeal before the First Appellate Court may not survive. Perusal of File-D of the Appellate Court record shows that there is nothing on record to show that the notice /intimation as contemplated by Rule 10A Order XXII of CPC was submitted by the Advocate representing third respondent before the District Court. There is nothing on record to show that during the pendency of the appeal in District Court, the appellants were aware of the death of the third respondent. The Appellate Court did not consider the effect of the abatement of Appeal against the third respondent as the Court was not made aware of the death.

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Hence, the prayer made by the learned counsel appearing for the appellants for sending back the matter to the First Appellate Court to enable the appellants for apply of setting aside of the abatement of appeal, deserves to be accepted.

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Hence, I pass the following order :-

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(1) The impugned Judgment and Decree dated 26^th March 1990 passed in Civil Appeal No. 671 of 1987 is quashed and set aside, not on merits but only with a view to enable the appellants to apply for setting aside abatement of the said appeal as against the third respondent. The appeal is remanded to the District Court for deciding the same afresh.

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(2) If the appellants fail to apply for setting aside abatement and bringing on record the legal representatives of the third respondent on record of Civil Appeal No. 671 of 1987 within a period of six weeks from the date on which writ of this judgment is received by the District Court, the District Court will be entitled to dispose of the appeal as abated.

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(3) If such application is made within the stipulated period of six weeks from the date on which the Writ of this Judgment is received by the Appellate Court, the said Court shall endeavour to decide the same as expeditiously as possible.

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(4) If the application for setting aside the abatement is allowed, the District Court shall endeavour to decide the appeal as expeditiously as possible and in any event within a period of four months on the date on which the abatement is set aside.

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(5) It is made clear that no adjudication is made by this Court on merits on the application for condonation of delay and application for setting aside of the abatement which may be made by the applicants and all contentions of the parties in this behalf are kept open to be decided by the Appellate Court.

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(6) Second Appeal is partly allowed in terms of this with no order as to costs.

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( A. S. OKA, J. )

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Babu Sada Gaikwad v. Shrimant Bahiru Gavhane

Case brief

What is this about?

What did the court decide?

Babu Sada Gaikwad v. Shrimant Bahiru Gavhane

Case brief

What is this about?

What did the court decide?

What the court decided

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