( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 1335 OF 2010 Ratan s/o Kundanmal Burodiya PETITIONER VERSUS Asaram @ Ashok Bhaurao Kapale RESPONDENT ..... Mr. L.B. Palod, advocate for the petitioner. Mr. M.D. Gitte, advocate holding for Mr. K.B. Jadhavar, advocate for the respondent. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 15th June, 2010] PER COURT : 1. Heard learned counsel Mr. Palod, for the petitioner. Mr. M.D. Gitte, holding for Mr. K.B. Jadhavar, advocate, sought adjournment. The request for adjournment is rejected. 2. Mr. Palod strenuously argued that the decree became inexecutable because it is barred by principle of res judicata in view of dismissal of the previous Darkhast application No. 81/1991, which was dismissed in default. He also submits that the decree cannot be executed because it is barred by limitation. He submits that time started running after 26th ( 2 ) September, 1984 from date of the decree passed in the suit (R.C.S. No. 378/1983). According to Mr. Palod, the execution application ought to have been dismissed by the trial Court, but by passing the impugned order, the trial Court erroneously rejected the objections of the petitioner. 3. Mr. Palod seeks to rely on certain observations in “Damodar Bhagwant Pande since deceased by L.Rs. Sulbha wd/o Damodar & others v. Narayan Bhagwant Pande since deceased by L.Rs. Anjali & others” 1999 (Supp.) Bom.C.R. 507. A Single Judge of this Court held that the subsequent execution proceedings were barred by principle of res judicata when the earlier execution application between the same parties was dismissed as it was found barred by limitation. Mr. Palod also referred to “Hameed Joharan (d) by L.Rs. & others v. Abdul Salam (d) by L.Rs. & others” 2001 (4) ALL MR 521. The Apex Court held that starting point for execution of the decree is the date on which such decree became enforceable and not when the decree became executable. 4. So far as the present case is concerned, the previous execution application was not dismissed on merits. In case of “Damodar Bhagwant Pande since deceased by L.Rs. Sulbha wd/o Damodar & others” (supra), the dismissal of the ( 3 ) earlier execution application was on a finding in respect of issue of limitation and, therefore, the bar of principle of res judicata was applicable. It is well settled that execution application can be filed again and again and even a part of the execution can be effected at one stage and part thereof can be sought at later stage. However, if it is held in earlier execution application that the execution was barred by limitation or that the decree itself was not executable, after giving finding on any issue as such, then the question of res judicata may arise. Herein, the previous dismissal of the execution application was not on merits and no finding was recorded by the executing Court while dismissing the application. Needless to say, the second application was not barred by principle of res judicata. 5. As regards objection respect of limitation, it may be gathered that the execution of the decree was stayed by order of the Court in proceedings of another suit bearing R.C.S. No. 268/1986 instituted by brother of the J.D. The civil Court had granted injunction on 10th September, 1991 and as such, the decree became unenforceable due to the clamping of prohibitory injunction. True, the period of limitation has commenced on 26th September, 1984 and within twelve (12) years, ( 4 ) the execution application ought to have been filed. However, during the period available to the D.H., the injunction was clamped and as such, the decree became unenforceable. It appears that the suit was dismissed and thereafter, the brother of the J.D. filed appeal bearing R.C.A. No. 210/2006 which was dismissed on 12th March, 2007 and thereafter, he challenged that order before the High Court. The Second Appeal was dismissed. It is thus conspicuous that the time was arrested for period between 10-09-1991 till 09-05-2007 due to the intervening orders of the Court. The execution petition is filed on 28th June, 2007 immediately after the dismissal of the second appeal. Therefore, it cannot be held as barred by limitation. 6. Considering the foregoing reasons, the petition is destitute of substance and as such, is dismissed. No costs. [V.R. KINGAONKAR] JUDGE NPJ/wp1335-10