CRP 98/2002 BEFORE HON’BLE THE CHIEF JUSTICE MR MADAN B. LOKUR The petitioner is aggrieved by an order dated 21-12-2001 passed by the learned C ivil Judge, Sr Divn, Morigaon in T Ex No.1/01. A decree was passed in favour of the petitioner on 17-8-1972 in TS No.30/70. Thi s was affirmed by this court on 7-8-79 in Civil Appeal No.62/72. The petitioner thereafter filed a T Ex No.1/82 in the court of the learned Asstt Dist Judge, Nagaon. After the creation of Morigaon district from Nagaon distric t, the records of T Ex No.1/82 went missing on transfer to Morigaon. The petitioner submits, through his learned counsel, that some time in 1996 he came to know that the case records had gone missing and, therefore, he filed an application for execution No.574/96 on 17-7-96. Objections were filed to the application for execution through petition No.307/0 1 and 350/01. On these objections the learned Civil Judge, Jr Division came to t he conclusion that the execution case filed by the petitioner was barred by time and this was upheld by the learned Civil Judge, Sr Division. The view taken by the learned Civil Judge, Sr Divn is that the execution applica tion was filed 14 years after the date of the first T Ex No.1/82. It was held th at because of the unusual silence on the part of the petitioner for such a long period, there was no case made out for entertaining the T Ex case that was filed some time in 1996 because it was time barred. Learned counsel for the petitioner submits, and in my opinion quite rightly, tha t the courts below had completely ignored the fact that the petitioner had earli er filed T Ex No.1/82 in the court of the learned Asstt Dist Judge, Nagaon. Ther e is no doubt about the fact that T Ex No.1/82 was filed within the period presc ribed by law. Unfortunately the records of the case went missing when Nagaon dis trict was bifurcated and Morigaon district was created. The records went missing when the case papers were to be transferred to Morigaon district. Merely because the papers were missing, the petitioner was compelled to file a s econd execution application. For the purpose of calculating limitation, the seco nd T Ex application would be irrelevant. It is the first T Ex application which would be relevant and that was filed way back in 1982 well in time. Both the cou rts below erred in ignoring this fact and in proceeding on the basis that the T Ex case which was subsequently filed by the petitioner would be the starting po int to be taken into consideration. This is not so. Under the circumstances the judgment and order passed by the courts below holdin g that the subsequent T Ex case filed by the petitioner is time barred are set a side and it is held that the subsequent T Ex case filed by the petitioner would relate back to the date on which the first T Ex No.1/82 was filed in the court o f the learned Asstt District Judge, Nagaon. It may be noted that respondent No.1(f), i.e. Md Liakat Ali has since expired. N o step has been taken to bring his legal heirs on record. Therefore, the petitio n abates insofar as that respondent is concerned. The remaining respondents are represented by their learned counsel. They are directed to be present before the learned Civil Judge, Sr Division, Morigaon on 26-11-2010. The petition is allowed. Send back the lower court records.