IN THE HIGH COURT OF MADHYA PRADESH AT INDORE BEFORE HON'BLE SHRI JUSTICE PAVAN KUMAR DWIVEDI

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ON THE 12 OF NOVEMBER, 2025 MISC. CIVIL CASE No. 1505 of 2025 HABIB S/O AHMAD KHAN (DECEASED) THROUGH LRS MOHAMMAD GULAM DASTGRI Versus ASRUN BI W/O AHMAD KHAN MUSALMAN (DECEASED) THROUGH LRS NASIR KHAN AND OTHERS Appearance:

Ms. Bharti Lakkad, advocate appearing on behalf of Shri Baldeep Singh Gandhi, learned counsel for the petitioner.

Shri Jitendra Bharat Mehta, learned counsel for the respondent [R-29].

ORDER Heard on I.A. No.4041/2025, an application for condonation of delay as well as on merits.

2. This application has been filed by the applicant under Order 22 Rule 9 (2) r/w Section 151 of CPC for setting aside the abatement of Second Appeal No.153/2006 dismissed on 22.03.2025 as abated against the deceased sole appellant.

3. The facts relevant to the case are that Late A suranbi was the original plaintiff, who filed a suit for partition of her one-sixth share in the suit house and possession thereof against the defendants after effecting partition by meets and bounds as also for mesne profit. The suit was decreed in favour of the said plaintiff thereby holding that the plaintiff is entitled to 1/6 share only. Accordingly a preliminary decree was passed and after prolong litigation a final decree was passed thereby the share of the plaintiff in the property was valued at Rs.50,933/-. It was directed that the decree holder after receiving the said amount from Munna and Saifuddin i.e. respondent Nos.5 and 7 shall execute a relinquishment deed in their favour and mesne profit was also directed. The same was challenged by the appellant (plaintiff). The respondents also filed their cross objection against the direction regarding execution of the deed of relinquishment in favour of respondent Nos.5 and 7, and for payment of mesne profits. The appeal as well as objections were decided vide judgment and decree dated 31.01.2005 whereby the appellate court dismissed the appeal and partly allowed the cross objection so far as it relates to execution of deed of relinquishment in favour of respondent Nos.5 and 7.

4. Being aggrieved by this judgment and decree passed on 31.01.2005, S.A. No.153/2006 was filed before this Court. The appellant in second appeal died on 14.05.2019, however, even after his death as the LRs of sole appellant were not brought on record, this Court vide order dated 22.03.2005 held that the appeal stood automatically abated in view of the fact that the appellant expired on

14.05.2019 and till date his LRs could not be brought on record.

5. After abatement of the said appeal, this application has been filed for setting aside abatement on 28.04.2025 whereby it has been pleaded by the applicant that the sole appellant died on 14.05.2019. He left behind legal representatives i.e. the applicant Mohammad Gulam Dastgri i.e. his son. It is stated in the application that he was residing with him till 09.04.2019, on 09.04.2019, he went to Saudi Arabia for earning bread for his family and his father i.e. the sole appellant died on 14.05.2019. He could not come to India for performing his last rites due to certain constrains prevailing on the Visa granted by the kingdom of Saudi Arabia. He came back to India only on 19.02.2021 and started residing with his family at Indore. It has further been stated that since the applicant was not aware about the pendency of the present appeal and recently his uncle who is respondent No.13 in the present case told him about the dismissal of the present appeal as abated upon the death of his father then only he contacted the counsel and filed this present application for bringing him on record.

6. In the application filed under Section 5 of the Limitation Act along with the present application, same explanation has been given for condonation of delay of 2025 days in filing the application for setting aside abatement. Learned counsel while arguing the case has stressed upon the fact that restoration ap