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CRA/717/2001 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
REVISION APPLICATION No. 717 of 2001
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BATULBHAI
MULLA SAIFUDDINBHAISINGAPORWALA & 1 - Applicant(s)
Versus
MARIYAMBEN
KUTUBBHAI BHABARAWALA - Opponent(s)
=========================================================
Appearance
:
MR
RN SHAH for
Applicant(s) : 1 - 2.
None for Opponent(s) : 1,
MR CJ VIN for
Opponent(s) : 1.2.1, 1.2.2, 1.2.3, 1.2.4,1.2.5
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CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 05/05/2011
ORAL
ORDER
1. The
present Revision Application is filed challenging the order dated
10.10.2000 passed by the Joint District Judge, Panchmahals at Gohra
in Misc. Civil Appeal No. 142 of 1998 whereby the order of abatement
of appeal No. 59 of 1998 was confirmed.
2. It
is the case of the petitioners that they are occupying suit premises
of city survey no. 3363 situated at Dahod and as the decree for
redemption of mortgage was passed in Regular Civil Suit No. 274 of
1984 by the Civil Judge (J.D.) Dahod vide judgemnet and decree dated
29.04.1988, appeal no. 59/88 was preferred by the present
petitioners. Pending the said appeal, Shri Kutubbhai Haji Mulla
Yusufali Bhabharwala expired and therefore the said appeal was
dismissed as it was abated for not bringing heirs of deceased
Kutubbhai on record. The petitioners challenged the order of
abatement by filing Misc. civil Appeal No. 142 of 1998 and the
appellate court after hearing the parties dismissed the appeal and
confirmed the order of the trial court. Being aggrieved by the said
order, the present revision application is preferred.
3. Mr.
R.N. Shah, learned advocate appearing for the petitioners submitted
that the trial court ought to have considered that the appeal no.
59/88 by the petitioners only with regard to the order of possession
as they are claiming to be tenants of the suit land and no decree for
possession should be passed in a suit for redemption but the said
appeal is not decided on merits but dismissed only on the ground that
the heirs of Kutubbhai were not brought on record and that the appeal
has been abated. He submitted that the appellate court ought to have
considered the aforesaid aspect and also the fact that no prejudice
would be caused to the respondent if the appeal is heard on merits by
setting aside the order of abatement.
4. Heard
learned advocates for the parties and perused the documents on
record. The appeal no. 59/88 was filed on 13.06.1988 and on
12.10.1992 the appellants filed a pursis Ex. 29 stating therein that
as the respondent no. 1 had died they needed time to bring heirs on
record. However, thereafter time was sought on many occasions but no
procedure for bringing the legal heirs on record was undertaken.
Thereafter on 26.02.1993 the said appeal was disposed of as abated.
It is also required to be noted that after the order dated 26.02.1993
was passed, Misc. Civil Appeal was preferred on 14.10.1998. From the
order dated 10.10.2000, more particularly para 6 it is the borne out
that the copy of the abatement order was applied for on 03.09.1998
and was delivered to the petitioners on 21.09.1998. Even after
receiving the order, the appeal was filed on 14.10.1998. The
original suit was filed in the year 1984. Even otherwise the delay
is of about more than five years. Moreover, no plausible explanation
was given therein for the delay caused. This court is of the view
that the appellate court was justified in rejecting the appeal. No
interference is called for.
5. Accordingly,
revision application is dismissed. Rule is discharged. Interim
relief, if any, stands vacated. No costs.
(K.S.
JHAVERI, J.)
Divya//
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