Renuka 6-WP-3408-2013.docx IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3408 OF 2013 WITH INTERIM APPLICATION (ST) NO. 22406 OF 2026 WITH INTERIM APPLICATION (ST) NO. 22411 OF 2026 Shri. Daulat Rama Boraste ...Petitioner (Original Defendant No. 1) V/s. Sau. Vimal Baburao Mate and Ors ...Respondents ________________ Mr. Girish R. Agrawal for Petitioner. ________________ CORAM: SANDEEP V. MARNE, J. DATED: 21 AUGUST 2026. P.C.: 1) By this Petition, Petitioner has challenged order dated 9 November 2011 passed by the District Judge, Nashik allowing Application at Exh-68 filed by the Appellant therein for withdrawal of the Appeal with permission to file fresh suit before the Trial Court. 2) I have heard Mr. Agrawal, the learned counsel appearing for the Petitioner and have considered the submissions canvassed by him. 3) The original Petitioner was Defendant No. 1 in the Suit for partition instituted by the Plaintiffs/original Respondent No. 1. The suit was partially decreed against the original Petitioner/Defendant No. 1. Page No. 1 of 3 21 August 2026 2026:BHC-AS:34744 Renuka 6-WP-3408-2013.docx The original Petitioner/Defendant No. 1 did not prefer any Appeal challenging the decree. The decree thus attained finality qua the original Petitioner/Defendant No. 1. It is the Plaintiffs, who filed Appeal before the District Court to the extent of non grant of full prayers in the suit. Before the Appellate Court, Plaintiffs discovered that Defendant No. 6 had already passed away and that therefore decree would be a nullity on account of failure to bring on record legal heirs of Defendant No. 6. Since the suit was for partition in which parties always do not take rival positions, the Plaintiffs/Appellants applied for withdrawal of Appeal as well as the Suit with liberty to file a fresh suit. The Application has been allowed by the Appellate Court. The impugned order thus actually enures to the benefit of the Petitioner/original Defendant No. 1. It is therefore incomprehensible as to why the present Petition is filed by the Petitioner. It also appears that the Plaintiffs have not shown any interest in appearing before this Court. Therefore, it is not known as to whether Plaintiffs are still interested in instituting a fresh suit or not. Be that as it may. Even if Plaintiffs/their legal heirs are interested in filing a fresh suit for partition, the Petitioner/original Defendant No. 1 can have a fresh bite at the cherry and can defend such suit. 4) Mr. Agrawal, the learned counsel has relied on judgment of the Apex Court in Vikram Bhalchandra Ghongade V/s State of Maharashtra and Ors. 1 The Judgment in my view has no application to the facts of the present case. In case before the Apex Court, the Trial Court had decreed the suit. The Defendants filed Appeal. During pendency of the Appeal, both the Defendants passed away. Without 1 AIR 2025 SC 5437 Page No. 2 of 3 21 August 2026 Renuka 6-WP-3408-2013.docx noticing the fact that both the Defendants/Appellants had passed away, the Advocates argued the Appeal and the same was partly allowed thereby partly modifying the decree of the Trial Court. In the facts of that case, the Apex Court held that the decree has partially modified by the Appellate Court was a nullity and what survived was only the decree passed by the Trial Court. The Hon'ble Apex Court accordingly held that the original decree passed by the Trial Court was alone executable. The judgment would have no Application to the facts of the present case where the prosecutor of the proceedings has not passed away. In the present case, the decree was passed without noticing the fact that Defendant No. 6 had passed away. In the light of this situation, the Appellate Court has granted liberty for filing of fresh Suit. Reliance by Mr. Agrawal on the judgment of the Apex Court in Budh Ram and Ors. V/s Bansi and Ors. 2 does not assist the case of the Petitioner. In case before the Apex Court the suit was for declaration of co-ownership right in a joint family property. As against this, the suit in the present case is for partition. Therefore, death of one of the Defendants would not render abatement in respect of the entire suit as such. In that view of the matter, I am not inclined the interfere in the impugned order. 5) Writ Petition is accordingly dismissed. Needless to say that if the fresh suit is instituted, the same shall be decided on its own merits. All defences of Defendants in the fresh suit are expressly kept open. Pending Interim Applications do not survive and the same are disposed of. [SANDEEP V. MARNE, J.] 2 2010 AIR SCW 5071 Page No. 3 of 3 21 August 2026 Signed by: Renuka S Thakur Designation: PA To Honourable Judge Date: 24/08/2026 15:26:25