IN THE HIGH COURT OF MADHYA PRADESH AT INDORE BEFORE HON'BLE SHRI JUSTICE VIVEK RUSIA th ON THE 26 OF MARCH, 2025 CIVIL REVISION No. 138 of 2015 DECEASED RAKHABDAS THRU. LRS. SURESHCHANDRA AND OTHERS Versus LALITKUMAR AND OTHERS Appearance:

Shri Dharmendra Kumar Sharma, learned counsel for the petitioner.

Shri Anuj Bhargava, learned counsel for respondent No.1.

ORDER The petitioner has filed the present civil revision under Section 115 of the Code of Civil Procedure, 1908 against the order dated 18.07.2014 passed rd by the III Additional District Judge, Ujjain, whereby the Miscellaneous Civil Appeal has been allowed and the judgement and decree dated 09.07.2003 have been set aside on the ground that the suit stands abated because legal heirs were not brought on record.

02. Facts of the case in short are as under:

2.1. Petitioner - Rakhab Das (now dead & represented through legal heirs) filed a suit against Abdul Karim (now dead and represented through legal heirs) and two others on 10.03.1943 for the release of mortgaged house No.1356 (new number 186 & 187), Jivajiganj, Ujjain, cancellation of a sale deed dated 04.01.1943 executed by defendants No.1 & 2 in favour of defendants No.3 & 4, and possession.

Signature Not Verified

2.2. In the year 1963, the suit was remanded back by the High Court.

During the pendency of the aforesaid proceedings, defendants No. 1 & 2 died, and their legal heirs were brought on record, but they did not file a written statement. Original defendants No. 3 & 4 filed a joint written statement and thereafter, proceeded ex parte. Vide judgement dated

09.07.2003, the suit was decreed ex parte in favour of the plaintiff.

2.3. An application dated 09.07.2003 for setting aside the ex parte judgement and decree was filed by Lalit Kumar S/o Mangilal (defendant No.3). The application was dismissed vide order dated 18.06.2009. Being th aggrieved, a Miscellaneous Civil Appeal was filed before the IX ADJ, Ujjain, which came to be dismissed vide order dated 09.07.2003.

2.4. Being aggrieved by the aforementioned order passed by the appellate Court, W.P. No. 10507 of 2010 was filed before this Court. Vide the order dated 15.02.2012, the writ petition was allowed and the matter was remanded back to the appellate Court to re-decide the appeal.

2.5. After remand, vide order dated 18.07.2014, learned Additional District Judge has observed that before passing the ex parte judgement and decree, plaintiff Hukumchand and Kamla Bai were dead, and legal heirs of both the parties were not brought on record within the stipulated period; therefore, the suit itself had abated. The suit cannot be proceeded with further as the legal heirs were not brought on record in time, and abatement operates automatically, for which no formal order is necessary. Therefore, the learned Additional District Judge allowed the Miscellaneous Civil Appeal and set aside the judgement and decree dated 09.07.2003 with an observation that Signature Not Verified the suit itself is abated, and in the absence of LRs., the suit for recovery of possession cannot proceed further. The learned Additional District Judge, though set aside the ex parte judgment and decree, but dismissed the suit as abated. Hence, the legal heirs of the plaintiff approach this court by way of this revision.

03. I have heard learned counsel for the parties and perused the record.

04. The issue under consideration in the Miscellaneous Civil Appeal rd before the III Additional District Judge was only to decide whether the application under Order IX Rule 13 of the CPC has rightly been rejected, the appellate Court came to the conclusion that the application under Order IX Rule 13 was liable to be allowed, then ought to have set aside ex parte decree would be set aside and restore the suit to its original number.

05. In the civil suit, parties will get an opportunity to file an application for setting aside the abatement with an application under Section 5 of the Limitation Act as well as an application