Bombay High Court
SHRI. DAULAT RAMA BORASTEversusSAU. VIMAL BABURAO MATE AND ORS
- Decided
- Disposal
- Dismissed
Holding
The order permitting withdrawal of the appeal and filing of a fresh suit is valid and the writ petition is dismissed.
Summary
The petitioner, Daulat Rama Boraste, a former defendant in a partition suit, challenged a High Court order that permitted the plaintiffs to withdraw their appeal and to file a fresh suit after discovering that Defendant No.6 had died, rendering the original decree potentially void. The original decree had been partially decreed against the petitioner, who had not appealed, while the plaintiffs had appealed the decree. Upon learning of Defendant No.6's death, the plaintiffs sought to withdraw the appeal and the suit, and the appellate court allowed this with liberty to file a fresh suit. The petitioner argued that the order was erroneous, relying on Supreme Court judgments, but the court found those precedents inapplicable and held that the order was proper. Consequently, the writ petition was dismissed, and any future fresh suit would be decided on its merits with all defenses open to the defendants.
Issues considered
- Whether the High Court was justified in allowing the withdrawal of the appeal and granting permission to file a fresh suit in a partition case where a party had died.
- Whether the death of Defendant No.6 renders the original decree a nullity.
- Whether the Supreme Court judgments in Vikram Bhalchandra Ghongade v. State of Maharashtra and Budh Ram v. Bansi are applicable to the present facts.
Subjects
- partition suit
- appeal withdrawal
- fresh suit
- death of party
- decree nullity
- civil procedure
- writ petition
- High Court
Judgment
2026:BHC-AS:34744
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.
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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
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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
Signed by: Renuka S Thakur
Page No.3 of 3
Designation: PA To Honourable Judge 21 August 2026
Date: 24/08/2026 15:26:25
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