Bombay High Court
Vishnu Babu Matale Died Through ... vs Chief Executive Officer And ... on 5 February, 2021
Bench: V. V. Kankanwadi
(1)
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.
-----
CORAM : SMT.VIBHA KANKANWADI,J.
DATE : 5th 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
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
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 properly constituted or can
be said to have all the necessary parties
for the decision of the controversy
before the Court. The test to determine
this has been described in diverse forms.
Courts will not proceed with an appeal
(1) when the success of the appeal may
lead to the Court's coming to a decision
which will be in conflict with the
decision between the appellant and the
deceased respondent and therefore which
would lead to the Court's passing a
decree which will be contradictory to the
decree which had become final with
respect to the same subject-matter
between the appellant and the deceased
respondent; (2) when the appellant could
not have brought the action for the
necessary relief against those
respondents alone who are still before
the Court and (3) when the decree against
the surviving respondents, if the appeal
succeeds, will be ineffective, that is to
say, it could not be successfully
executed."
6. The same ratio has been further
reiterated in the case of Bibijan Vs. Murlidhar
and Ors. - 1995 (1) SCC 187; Annabai Devram Kini
and Ors. Vs. Mithilal Daisangar Singh and Ors. -
2002(3) Mh.L.J. 507; and Gajanan s/o Namdeo Kale
Vs. Sakhubai W/o Bhimaji Kharat (died) and ors. -
2012 (4) Mh.L.J. 470.
7. Now, the facts before the Court though do
not state that the respondent/s, against whom the
application is dismissed, has expired; yet the
same analogy is required to be applied in this
case. Therefore, this cannot proceed against the
other respondents when the suit is for partition
and possession and especially the suit property
was stated to be given to defendant No.4.
8. In the result, the application stands
dismissed.
9. In view of dismissal of the CA for
condonation of delay, the Second Appeal which is
on stamp number and CA for stay therein do not
survive and they also stand disposed of as such.
( SMT. VIBHA KANKANWADI )
JUDGE
BDV
