JUDGMENT : Sanjay Kumar Dwivedi, J. 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 5 th November, 2022 passed by learned District Judge 1 st 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 6 th June, 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 1 st 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 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 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 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 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. 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 5 th November, 2022 passed by learned District Judge 1 st 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 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 23 rd 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.