ORDER

Re: I.A. No. 46 of 2019

This interlocutory application has been filed for condoning the delay of 5 years and 6 months in filing the memo of appeal.

2. This Second Appeal has been filed against judgment and decree dated 09.02.2012 and 16.04.2013 passed in Title Appeal No. 23 of 2012 by Ad hoc Additional District Judge-V, Muzaffarpur, whereby the judgment and decree passed in Title Suit No. 632 of 2008 by Sub Judge-IV, Muzaffarpur has been affirmed against defendant nos. 1 and 2/respondent nos. 2 and 3 along with a petition seeking leave to file Second Appeal against the impugned judgment and decree. However, the appellants were not party to the suit. The said application for seeking leave to file Second Appeal has been allowed vide order dated 11.05.2023.

3. Heard Mr. P.K. Shahi, learned Advocate General assisted by Mr. S.D. Yadav, learned AAG-9, appearing on behalf of the appellants and Mr. Aditya Shankar Prasad, learned counsel for the respondent no. 1 appearing on behalf of the respondent no. 1.

4. Learned senior counsel for the appellants submits that the aforesaid suit was filed against the State of Bihar through the District Collector, Muzaffarpur and Circle Officer, Kanti, Muzaffarpur while property in question belongs to the appellants (Road Construction Department, Government of Bihar) and they were not made party in the suit and they were necessary party in the subject matter and their rights have been per-judicially and adversely affected. Hence, the appellants filed this appeal against the impugned judgments and decree passed by the lower court below. It is submitted that the appellants were unaware with regard to any such proceeding and suddenly the officials of the Execution Court came for the execution of the decree passed in Title Suit No. 632 of 2008 and then they could learnt about the same. The Execution Case No. 05 of 2014 has been filed by the decree holder for execution of impugned judgment and decree passed against the State of Bihar through District Collector, Muzaffarpur, Circle Officer, Kanti and Executive Engineer, Mechanical Division, Road Construction Department, Muzaffarpur although Executive Engineer Mechanical Division Road Construction Department, Muzaffarpur was not party to the suit or appeal. After Admission of Execution Case, the notices were issued to the respondents including the appellant no. 4. The learned Execution Court accepted the services of notice after passing of 30 days of the notice against respondent nos. 2 and 3 as well as appellant no. 4. It is further contended that from Column-10 of the aforesaid Execution petition, it is apparent that the Execution of decree has been sought for against the Executive Engineer, Mechanical Division, Road Construction Department, Muzaffarpur and the District Collector, Muzaffarpur.

5. Learned senior counsel further submitted that a notice dated 14.06.2018 was issued by the Office-In-charge/Nazir, Civil Court Muzaffarpur. The said notice was received in the office of Executive Engineer Mechanical, Muzaffarpur vide Letter No. 373 dated 14/15.06.2018 whereby direction was issued to vacate the land, in question, as the land in question belongs to the appellants and hence, the aforesaid letter was forwarded by Executive Engineer, Mechanical through its Letter No. 150 dated 17.09.2018. It is further submitted that the appellants first time learnt about the impugned judgment and decree, thereafter, the appellant no. 4 consulted with the Advocate, who prepared grounds of appeal and submitted before the authority concerned for its approval. The grounds of appeal were approved and returned to the appellant no. 4 on 19.11.2018 with authorization to assail the impugned judgments and decree by filing Second Appeal in the instant matter. Soon thereafter memo of appeal has been filed on 27.11.2018. Learned senior counsel for the appellants further raised serious objection with regard to execution of decree. It is submitted that the decree passed in the afore