BONITA DSOUZA Vs. PRECY NORONHA (SINCE DECEASED)
HIGH COURT OF BOMBAY
Precy Noronha (Since Deceased)
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C.V. Bhadang, J. -
(1.) Rule made returnable forthwith. The learned Counsel, waives service on behalf of the contesting respondent nos. 1(b) and 1(d). Heard finally by consent of parties. The petitioners are the original plaintiffs. Defendant no. 1(e) died on 14.08.1997, during the pendency of the suit. The suit came to be eventually dismissed, which is challenged by the petitioners in Regular Civil Appeal No. 457/2010, which is pending before the learned Additional District Judge at Mapusa. In the said appeal, an application came to be filed on behalf of the petitioner on 30.09.2015, to allow the petitioners to amend the cause title of the appeal memo, showing respondent nos. 1(a)(i) to 1(a)(vii), 1(b) and 1(d) as the legal representatives of the deceased respondent no. 1(e) [original defendant no. 1(e)]. It appears that the contesting respondents gave no objection for the same, with a rider that there are some more legal representatives of the respondent no. 1(e). The learned District Judge allowed that application by an order dated 03.11.2015. Subsequently, the contesting respondents filed an application (Exhibit-52) for review of the order dated 03.11.2015, on the ground that the roznama dated 07.01.2008 records that on account of failure to take steps for bringing the legal representatives of respondent nos. 1(c) and 1(e), the appeal stands abated. The learned District Judge by impugned order dated 18.01.2017 has allowed the application thereby recalling the order dated 03.11.2015. The net result is that the application dated 30.09.2015 filed by the petitioners is dismissed. It is this order, which is subject matter of challenge in this petition.
(2.) I have heard Shri Pangam, the learned Counsel for the petitioners and Shri Desai, the learned Counsel for the respondent nos. 1(b) and 1(d).
(3.) It is submitted by Shri Pangam, the learned Counsel for the petitioners that some of the defendants, who are legal representatives of the deceased defendant no. 1(e), were already on record and as such, the suit and for the matter of that, the appeal could not have abated on account of failure to being legal representatives of the deceased defendant on record. The learned Counsel pointed out that the contesting respondents had in fact given no objection and merely on account of some roznama entries, the learned District Judge was in error in reviewing the order.;
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