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CA/8633/2011 2/ 2 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
APPLICATION - FOR BRINGING HEIRS No. 8633 of 2011
In
SECOND
APPEAL No. 254 of 2010
=========================================
SAVJIBHAI
MALDEVBHAI GORAD - Petitioner(s)
Versus
KASTURBEN
W/O BHUPAT KANA & 13 - Respondent(s)
=========================================
Appearance :
MR
MEHUL S SHAH for Petitioner(s) : 1,MR SURESH M SHAH for Petitioner(s)
: 1,
MR ANSHIN H DESAI for Respondent(s) : 1 - 5.
None for
Respondent(s) : 6 - 7, 7.2.1, 7.2.2, 7.2.3, 7.2.4,7.2.5 - 8, 8.2.1,
8.2.2, 8.2.3, 8.2.4, 8.2.5, 8.2.6, 8.2.7,8.2.8 - 10, 10.2.1,
10.2.2,10.2.3 - 12.
- for Respondent(s) : 0.0.0,0.0.0
=========================================
CORAM
:
HONOURABLE
MS.JUSTICE HARSHA DEVANI
Date
: 11/08/2011
ORAL
ORDER
By
this application, the applicant – original appellant seeks
permission to join the heirs and legal representatives of deceased
respondent No.7 named in the cause title of the present application
as parties – respondents No.7(1) to 7(5) as his heirs in place of
the deceased respondent No.7 by setting aside the abatement and
condoning the delay of 1372 days in filing the present application.
Mr.
Mehul S. Shah learned advocate for the applicant has submitted that
the only reason why the applicant seeks to bring the heirs of the
deceased respondent No.7 on record is to bring to the notice of the
heirs that the decree passed in their favour by the appellate court
is a nullity.
On
the other hand, Mr. Anshin H. Desai learned advocate for the
respondents No. 1 to 6 states that the appeal before the lower
appellate forum has abated not only qua deceased respondent No.7 but
all the respondents therein.
Mr.
J.M.Malkan learned advocate for the respondents No.13 and 14
reiterates the submission made by Mr. Anshin H.Desai.
A
perusal of the averments made in the application indicates that the
deceased respondent No.7 has expired on 26th July, 2007;
whereas, the impugned judgment and decree passed by the lower
appellate court is dated 21st October, 2010. In the
circumstances, it is evident that deceased respondent No.7 has
expired during the pendency of the appeal before the lower appellate
court. In the circumstances, in the absence of the heirs and legal
representatives of deceased respondent No.7 being brought on the
record of Regular Civil Appeal No.106 of 2006, it was the said
appeal which stood abated qua respondent No.7. Hence, the remedy, if
any, lies before the said Court and not before this Court.
The
present application for bringing on record the heirs and legal
representatives of the deceased respondent No.7, who had expired
during the pendency of the appeal before the lower appellate court,
is, therefore, rejected as not maintainable before this Court.
(HARSHA
DEVANI, J.)
(ashish)
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