(1) WP. 3327.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3327 OF 2010 AND CIVIL APPLICATION NO. 5439 OF 2010 IN W.P.3327 OF 2010 Digambardas S/o Dwarkadas Shah Deceased through his LRs. and ors. .. PETITIONERS VERSUS Videocon Industries Ltd. .. RESPONDENT Mr. Mukul S. Kulkarni, Advocate h/f. Mr. M.C. Ghode, Advcoate for the Petitioners Mr. L.B. Pallod, Advocate for the respondent ... CORAM : V.R. KINGAONKAR, J. DATED : 9TH JULY, 2010 ORAL ORDER:- 1. By this Petition, the petitioners who are original defendants, challenge the order rendered by the learned Civil Judge (Senior Division) Aurangabad whereby additional issue was framed and was directed to be decided simultaneously alongwith the other issues. The additional issue no.1 framed by the trial Court is as follows:- "1A Whether the suit is maintainable in view of order in R.C.A. 105 of 1962 and (2) WP. 3327.2010 Second Appeal NO. 314 of 1986 passed by the Hon'ble High Court?" Petitioners pleaded bar to the suit on the ground that principle of res-judicata is applicable and that the question regarding possession of the property involved in the suit cannot be agitated by one separate suit. The contention of the petitioner is that the questions to be determined regarding the proper execution of the decree and delivery of possession of the properties in question cannot be agitated by way of separate suit. 2. It is important to notice the petitioner filed the application after a long drawn delay during pendency of the suit. The applications were filed in 2009 whereas the suit was pending since the year 2006. The suit is now at the stage of trial and evidence has been recorded. Counsel for the respondent would submit that cross-examination of the respondent 1 and 2 is also conducted. It is manifest therefore that the trial of the suit is at the fag end. At such a juncture, it is difficult to say (3) WP. 3327.2010 that the suit must be decided only on a preliminary issue as has been framed at the instance of the petitioner. The relevant provisions of order 14 rule 2(1) and (2) of the Code of Civil Procedure would make it amply clear that ordinarily all the issues are required to be answered together. The issue may be decided at the earlier stage of suit if it is such a preliminary issue which does not require recording of evidence and consideration of any other disputed question of fact. Needless to say if an issue is a barely question of law, then it may be framed and tried as a preliminary issue. In the present case, the preliminary stage itself has by-gone and therefore, there is no propriety in directing decision on such issue as a preliminary issue, particularly when the trial is at its logical end. Hence without expressing any opinion on the merits, the Petition is disposed of. The trial Court shall decide the issue no.1A alongwith the other issues and also shall consider whether the question regarding delivery of possession to the vendor of the plaintiff can be considered in the separate suit or that it is exclusively the question which ought to be decided in (4) WP. 3327.2010 the execution proceedings as contemplated under section 47 of the Code of Civil Procedure. All issues are kept open. Civil Application no.5439 of 2010 also stands disposed of. Sd/- [V.R. KINGAONKAR, J.] arp