Jharkhand High Court
Goutam Kumar @ Goutam Rout vs M/S Mihijam Vanaspati Ltd. Having Its ... on 14 July, 2025
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
2025:JHHC:19052
IN THE HIGH COURT OF JHARKHAND, RANCHI
C.M.P. No. 38 of 2025
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1. Goutam Kumar @ Goutam Rout, son of Late Girdhari Prasad Rout,
aged about 40 years, resident of Mohalla Chhatishi, PO - Bilasi
Town, P.S. - Deoghar, District - Deoghar
2. Chandan Kumar, son of Late Girdhari Prasad Rout, aged about 33
years, resident of Mohall Chhatishi, PO - Bilasi Town, PS - Deoghar,
District - Deoghar .... Petitioners
-- Versus --
M/s Mihijam Vanaspati Ltd. having its registered office-cum-works,
village - Kangoi, PO and PS - Mihijam, District - Jamtara, Jharkhand
through its Director Sri Rajesh Agarwal, S/o of Late Vijay Kumar
Agarwal, R/o - HB 165, Salt Lake, PO and PS - Bidhan Nagar,
District - Kolkata, West Bengal .... Opposite Parties
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioners :- Mr. Prashant Pallav, Advocate
For the O.P. :- Mr. Rohitashya Roy, Advocate
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06/14.07.2025 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 dated 5th
November, 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 dated
6th June, 2023 passed in the said appeal whereby the Money
Execution Case No.34 of 2017 has been stayed.
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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/- 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
24.06.2010 to 10.01.2011. 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 dated 22.12.2015 decree signed on
08.01.2016 and was decreed against the opposite party directing
him to pay Rs.3,68,174/- 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 14.03.2016 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
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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
09.04.2018 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 13.02.2020 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
Section 5 of the Limitation Act was filed by the opposite party on
22.09.2022. 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
dated 05.11.2022 and further by another order dated 06.06.2023
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
2025:JHHC:19052
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.
4. Mr. Rohitashya Roy, learned counsel appearing for the
opposite party submits that the decree was passed ex-parte against
the opposite party and the said was challenged before the learned
first appellate court and the learned Court finding the explanation
sufficient has been pleased to condone the delay and that was
allowed at the cost of Rs.5,000/-. He further submits that it is the
discretion of the Court to condone the delay and if the order is
passed even in absence of the petitioners there is no illegality. He
submits that so far the stay of execution case is concerned that was
stayed only till the appearance of the petitioners herein and on this
ground, he submits that this petition may kindly be dismissed.
5. It is an admitted position that the Money Execution Case
No.34 of 2017 was instituted by the father of the petitioners and in
spite of proper notice opposite party herein has failed to appear
before the learned Court where the money suit was proceeding and
the suit proceeded ex-parte and finally the ex-parte decree was
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passed on 22.12.2015 thereafter even the execution case has been
filed by the father of the petitioners being Money Execution Case
No.34 of 2017. In the execution case, the opposite party appeared
on 09.04.2018 and the appeal has been filed in the year 2019
against the ex-parte decree. Thus, it is crystal clear that it was in
the knowledge of the opposite party that father of the petitioners
has left for his heavenly abode in spite of that against the dead
person the appeal has been preferred. Even in the appeal
substitution was not made before the learned first appellate court
and the first appellate court has been pleased to admit the appeal
and condone the delay. Before the learned Court, the report has
also been received to the effect that the father of the petitioners
has left for his heavenly abode in spite of that no steps have been
taken by the opposite party to substitute the petitioners therein and
the learned Court has passed the said order. It is well known that if
any order is passed against a dead person that is a nullity.
6. In view of above facts, reasons and analysis the Court finds
that the impugned order dated 05.11.2022 is not in accordance with
law, as such the impugned order dated 5th November, 2022 passed
by learned District Judge 1st at Deoghar in Civil Appeal No.50 of
2019 is hereby set aside.
7. The Civil Appeal No.50 of 2019 along with the condonation
petition is restored to the file of the first appellate court which will
be further decided by the learned first appellate court after
2025:JHHC:19052
providing opportunity to both the sides in accordance with law.
8. The petitioners herein and the opposite party shall appear
before the learned first appellate court on 23rd August, 2025.
9. In view of this order, the learned first appellate court is not
required to issue fresh notice upon the petitioners and the opposite
party.
10. This petition is allowed in above terms and disposed of.
(Sanjay Kumar Dwivedi, J.)
Sangam/
A.F.R.
