29. wp 3756­10.doc RMA IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION . WRIT PETITION NO 3756 OF 2010 Sanjay Yashwant Gaikwad & Ors .. Petitioners Vs Padmakar Shrirangrao Saraf & Ors .. Respondents . . . Mr M L Patil for the Petitioners . . Mr Prashant Patil for Respondent No 1 . . . . Mr T S Ingale for Respondent No 2 : CORAM . . , . B R GAVAI J : , . DATE 17th FEBRUARY 2011 . .: P C . 1 , By the present petition the petitioner challenges the order dated 12th March 2010 vide which the application filed by the present petition for framing the issue of limitation as . preliminary issue came to be rejected . 2 . , Mr Patil the learned counsel for the petitioners submitted that . the learned trial Judge has erred in rejecting the application - He submitted that ex facie the claim of the plaintiff is beyond . the limitation It is further submitted that since the Court has 1 29. wp 3756­10.doc , already prejudged the issue regarding limitation great , prejudice would be caused to the petitioners in as much as it will not be open for the petitioners to raise the ground in that . respect at the stage of hearing of the suit . 3 The learned trial Judge while rejecting the application has found . , that in earlier application i e in an application under Order VII ( ) ( ) , Rule 11 a and d of the Code of Civil Procedure the predecessor of the learned Judge has already given a finding that the issue of limitation is a mixed question of law and facts , and as such requires to be considered at the state of the trial . , after evidence is led by the parties In that view of the matter . the application is rejected . 4 No perversity could be found with the order passed by the . learned trial Court to warrant interference In so far as apprehension of the petitioners regarding the learned trial , Judge prejudicing the issue is considered the same is also . without any substance As already observed by the Court in its , earlier order dated 28th July 2006 the issue of limitation is a mixed question of law and facts and the learned trial Judge , would be required to decide the same in accordance with law 2 29. wp 3756­10.doc and by considering the evidence that would be led by the . parties before it . 5 . Petition is disposed of with aforesaid observations . . , . [ B R GAVAI J ] 3 29. wp 3756­10.doc 4