GOUTAM KUMAR Vs. MIHIJAM VANASPATI LTD.

JUDGEMENT

(1.) Heard Mr. Prashant Pallav, learned counsel appearing for the petitioners and Mr. Rohitashya Roy, learned counsel appearing for the sole opposite party.

(2.) This petition has been filed under Article 227 of the Constitution of India for setting aside of the order dtd. 5/11/2022 passed by learned District Judge 1st at Deoghar in Civil Appeal No.50 of 2019 whereby the learned Court has been pleased to condone the delay of 1108 days in filing of the civil appeal. Further prayer is made for setting aside of the order dtd. 6/6/2023 passed in the said appeal whereby the Money Execution Case No.34 of 2017 has been stayed.

(3.) Mr. Prashant Pallav, learned counsel appearing for the petitioners submits that the sole opposite party is a proprietorship company and are the appellant in the Civil Appeal No.50 of 2019 which is pending before the learned District Judge 1st at Deoghar and defendant/opposite party in Money Suit No.02 of 2012 and Money (Exe) Case No.34 of 2017. He submits that the petitioner's father Late Girdhari Prasad Rout had instituted Money Suit No.02 of 2012 for passing decree of Rs.3,68,174.00 against the opposite party/defendant in the said suit with interest at the bank rate and cost of the suit. The petitioner's father Late Girdhari Prasad Rout had supplied certain goods and articles for the duration from 24/6/2010 to 10/1/2011. He submits that in spite of several demand the opposite party company did not pay the dues, thereafter, a legal notice was issued and when the payment was not made the said suit was instituted that was proceeded ex-parte and by the ex-parte judgment dtd. 22/12/2015 decree signed on 8/1/2016 and was decreed against the opposite party directing him to pay Rs.3,68,174.00 along with interest at the rate of 9% per annum from the date of filing of the suit. He submits that the father of the petitioners filed money execution case being Money (Execution) Case No.15 of 2016 on 14/3/2016 before the learned Civil Judge, (Senior Division) ' IV, Deoghar wherein the petition under Order 21 Rule 6 was filed by the decree holder to transfer the case to the Principal District Judge, Jamtara for recovery of dues from the respondent company as the company office have their office at Jamtara and the said money execution case was renumbered as Money (Exe) Case No.34 of 2017. He submits that in the execution case the opposite party company appeared on 9/4/2018 and the execution case was further sent for mediation and after one year First Appeal No.136 of 2019 was preferred against the judgment by the opposite party herein. He further submits that in the meantime the father of the petitioners has left for his heavenly abode and thereafter petitioner No.2 filed a petition on 13/2/2020 before the executing court for substituting his father which was allowed. He further submits that in the meantime the pecuniary jurisdiction of the civil court was enhanced and in view of that the said first appeal was transferred by the High Court to Principal District Judge, Deoghar. He submits that there was delay in filing of the present appeal of 1108 days and a petition under Sec. 5 of the Limitation Act was filed by the opposite party on 22/9/2022. He submits that without hearing the petitioners herein notice has been issued against the father of the petitioners, who has already left for his heavenly abode and the report to that effect has been received before the learned Court, however, without any substitution the delay of 1108 days has been condoned by the order dtd. 5/11/2022 and further by another order dtd. 6/6/2023 the Money Execution Case No.34 of 2017 was stayed. He submits that there is no explanation to condone the delay of 1108 days and further the opposite party herein was appearing in the executing court in spite of that the substitution has not been made in the appellate court and against the dead person the appeal was admitted, delay condoned and further the stay was granted. He submits by the impugned order the appeal has been admitted and delay has been condoned. He further submits that the said order is not in accordance with law and further the said order is a nullity as the father of the petitioners has already left for his heavenly abode.