Gurunath Shankarappa Mandage ... vs Uttam Nivrutti Surwase Died Lrs. ...
2021 Latest Caselaw 13080 Bom

                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           BENCH AT AURANGABAD


                        8 CIVIL APPLICATION NO.4729 OF 2021
                                 IN SAST/24491/2019


    GURUNATH SHANKARAPPA MANDAGE, DIED, THROUGH NAGESH AND
                                       ANOTHER
                                        VERSUS
    UTTAM NIVRUTTI SURWASE, DIED, THROUGH LRS. ANIL AND OTHERS
                                           ...
                        Mr. V.S. Tanwade, Advocate for applicants
                                           ...

                                    CORAM :      SMT. VIBHA KANKANWADI, J.

                                    ORDER :      14th SEPTEMBER, 2021.


PER COURT :



1               Notice of respondent No.2C has been returned unserved, as

reported to be dead. Interesting point to be noted is that the Bailiff Report

says that he expired on 02.05.2004. His photo copy of death certificate has

been collected by Bailiff. The present applicants are the original plaintiffs,

who had filed Regular Civil Suit No.7/1999 on 05.01.1999 and the suit came

to be dismissed on 19.12.2012. That means, the suit was pending before the

Trial Court for 13 years 11 months and 14 days and the suit was for only

declaration and injunction. There was no attempt to bring the legal

2 CA_4729_2021

representatives of respondent No.2-C on record before the Trial Court.

Further, when the present appellants-original plaintiffs filed Regular Civil

Appeal No.68/2013 on 13.02.2013 and the notices were issued to respondent

No.2-C, the fact of death had come on record and the internal page No.3 of

the Judgment of the First Appellate Court shows that the matter has abated

against respondent No.2-C. In fact, why the learned First Appellate Court

proceeded to disposed of the matter, is a question, if the right to sue would

not have survived and the decree that was claimed was joint and several. No

attempt was made to bring legal representatives on record of the First Appeal

when the First Appeal came to be decided on 31.07.2018. That means, the

matter was before the First Appellate Court for 05 years 05 months and 17

days. Without taking note of all these things the Second Appeal has been

filed. Therefore, on the next date the learned Advocate for the applicants to

make submissions on the point of maintainability. Stand over till 01.10.2021.

( Smt. Vibha Kankanwadi, J. )

Donge