SHAIKH LATIF SHAIKH BASHEERversusVINOD KHEMJI LODAYA

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        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   BENCH AT AURANGABAD

              927 WRIT PETITION NO. 14350 OF 2025

                 SHAIKH LATIF SHAIKH BASHEER
                           VERSUS
                    VINOD KHEMJI LODAYA

                                   ...
     Advocate for the Petitioner : Mr. Taher Ali Quadri, Mr. Vakil
                           Afzal Husain M.
         Advocate for Respondent : Mr. Bhandari Anand P.
                                   ...

                         CORAM : MANJUSHA A. DESHPANDE, J.
                         DATE : 29.08.2026

PER COURT :-


1.       The petitioner is judgment debtor in Regular Darkhast

No.9 of 2015 filed by the respondent herein. It is the

contention of the petitioner that the original decree was passed

in Regular Civil Suit No.693 of 1999 granting relief of

possession and mesne profits against the petitioner vide

judgment and order dated 06.04.2002. The respondent has

filed Regular Darkhast No.52 of 2002 for execution of decree

in RCS.No.693 of 1999. The objection filed by the petitioner

below Exh.16 was rejected by order dated 20.08.2005 and the

interim order was passed. The petitioner has filed Regular Civil

Appeal No.281 of 2005 challenging the order of interim relief

granted by the Executing Court. This appeal came to be

dismissed vide order dated 14.11.2005.          The petitioner has
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filed MARJI No.353 of 2005 for condonation of delay in filing

the appeal against judgment and decree dated 06.04.2002 in

Regular civil Suit No.693 of 1999. The MARJI was dismissed by

the Additional District Judge, Aurangabad on 16.02.2006. It is

submitted that against the said judgment, the petitioner has

preferred second appeal which is pending. It is submitted that

on the basis of the judgment and decree dated 06.04.2002

passed in RCS.No.693 of 1999.       The respondent herein i.e.

decree holder filed Darkhast No.280 of 2002 which came to be

dismissed for non-prosecution. Instead of filing an application

for restoration or an appeal challenging the dismissal of

Darkhast, the decree holder has again filed second application

for execution being Regular Darkhast No.9 of 2015 after a

period of 13 years from the date of passing of the order. The

petitioner has filed application raising objection as regards the

maintainability of the execution petition on 17.06.2025, on the

ground that second execution petition is beyond the period of

limitation of 12 years from the date of the decree dated

06.04.2002. Said application was opposed by the decree holder

by filing his say.   The learned Civil Judge Hunior Division,

Aurangabad has been pleased to reject the application of the

petitioner by passing an order dated 13.10.2025 below Exh.12.
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This order passed by the Executing Court below Exh.12 is

impugned in the present writ petition.


2.    The learned advocate for the petitioner submits that the

period of limitation prescribed under Section 136 of the

Limitation Act and is twelve (12) years. Therefore, the period

of limitation would start running from the date on which the

decree was passed by the Trial Court on 06.04.2002. Hence,

the application of the petitioner is beyond the period of

limitation. He has assailed the said order on the ground that

the learned Judge, while rejecting his application has observed

that “normally the decree becomes executable from the day as

soon as it passed. However, if there is an appeal the decree

becomes executable after the appeal has been decided.

Considering that the MARJI of the present petitioner was

pending and it was decided by the Appellate Court on

16.02.2006. The period of limitation would start from the date

on which the application in MARJI petition was dismissed on

16.02.2006.”


3.    He would submit that, it is the settled position of law

that the dismissal of an appeal does not amount to a decree

and the period of limitation would begin from the date on

which the suit was decreed. He would rely on the judgment
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passed by this Court in case of Narayan Bhau Salve (deceased)

and others Vs. Khandu Baburao Salve (deceased) and others .

More particularly, on paragraph No.41 where this Court has

observed that “in the case the order of dismissal of the appeals

in default does not amount to a decree, and certainly the said

order does not partake the character of an executable or

enforceable order, into which the decree passed by the Trial

Court would become enforceable on the date it was continued

to be so, till the period of limitation expired. Thus, according

to him, as in the present case also the appeal has been rejected

by refusing to condone the delay, thus no decree has been

passed and as such the period of limitation would begin from

the date the decree is passed on 06.04.2002. Hence, the

learned Judge has committed an error by allowing the

application on the aforementioned grounds.


4.    Learned advocate Mr. Bhandari has advanced his

submissions on behalf of the sole respondent/decree holder. He

submits that although the learned Judge has held that the

period of limitation would start from the day when MARJI

No.353 of 2005 was dismissed. But the underlying reason is

not correctly recorded by the learned Judge. He would submit

that in fact the learned Judge has failed to record that there
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was a previous execution Petition filed by the decree holder i.e.

Regular Darkhast No.280 of 2000. The decree holder has filed

Regular Darkhast No.280 of 2000, in which certain objections

were raised by the judgment debtor which were turned down

by the Executing Court, against which the judgment debtor has

filed Appeal in which was beyond limitation.       Thus, it was

accompanied with MARJI No.353 of 2005 for condonation of

delay.   It is submitted that during the pendency of MARJI

No.353 of 2005, there was an order of status-quo operating

against the Decree Holder, which came to be decided on

16.02.2006. Thus, according to him, the decree was in

executable till 16.02.2006. As such, the period of limitation

would start from the day on which the status-quo was vacated

as a result of rejection of MARJI No.353 of 2005. This fact

about the order of status-quo has been lost sight by the learned

Judge requires consideration. Sofar as the legal position that

has been laid down in various decisions of this Court as well as

the Supreme Court are not in dispute. The dismissal of appeal

would not merge into the decree, if such appeal is dismissed

for want of prosecution or on the ground of limitation meaning

thereby when the Appeal is not decided on merits. Learned

advocate for the respondent further submits that according to

him Section 14 of the Limitation Act would be applicable to the
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present case. After hearing the parties and after perusal of the

impugned order, there appears substance in the contention of

the learned advocate for the respondent/decree holder. The

learned Judge, has recorded findings about the maintainability

of execution petition which reads thus :

      “5.    As per Article 136 of the limitation Act limitation
      period was prescribed for 12 years for the execution of
      any decree or order of any civil Court. As per Article 136
      of Limitation Act, the time from which begins when the
      decree or order becomes enforceable. And normally the
      decree becomes executable from the date as soon as it
      passed.     And if there are appeals the decree typically
      becomes executable after the appeals have been heard
      and decided.      Therefore, in present case the decree
      becomes executable after the decision of M.A.R.J.I.
      Petition.    Therefore, the limitation period was started
      after the decision of M.A.R.J.I. Petition i.e. After
      16.02.2006.”


5.    These observations made by the learned Judge are

admittedly run counter to the decision referred herein above in

Narayan Salve (supra). As referred supra, the fact about status-

quo order was operating till MARJI was decided on

16.02.2006, has not at all been considered while computing

the period of limitation by the learned Judge. Since this issue

not considered, in my opinion, the order passed below Exh.12

suffers from non-application of mind, thus deserves to be
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quashed and set aside. More particularly in view of the

observations made in paragraph No.5 of the impugned order

which run counter to the decision of the Hon’ble Supreme

Court as well as the settled position of law. As a result of

which, the order below Exh.12 deserves to be set aside.

However, since the issue about date of starting point of

limitation is not properly appreciated by the learned Judge.

The parties are at liberty to file appropriate application before

the Executing Court, raising the issues of appropriate date for

counting period of limitation and to lead evidence in support

thereof.


6.      Till the decision in the application that would be filed by

the present petitioner, the executing court shall not proceed to

execute the decree in regular civil suit No.693 of 1999.


7.      All issues, rights and contentions of the respective parties

are kept open to be agitated in the application.          The Writ

Petition stands disposed of.


8.      Parties to act upon an authenticated copy.




                                   (MANJUSHA A. DESHPANDE, J.)
                                    ...
vmk/-