1 W.P.No.4915 of 2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO.4915 OF 2011 Sharadchandra Kanyahalal Shaha and ors. ..PETITIONERS VERSUS Parwatabai w/o Ramchandra Yadav ..RESPONDENT Mr D.K. Kulkarni, Advocate for the petitioners. CORAM : MRS MRIDULA BHATKAR, J. DATE : 7th October, 2011 PER COURT : This petition is filed challenging the order dated 28.4.2011, passed by 13th Joint Civil Judge (J.D.), Aurangabad. Plaintiffs have filed the suit for declaration that the decree passed in S.C.S. No.117 of 1998 by 2nd Joint Civil Judge Senior Division is null and void. The decree was passed on 4.12.2000 and the suit is filed on 5.8.2011. The defendants moved application under Order VII, Rule XI of the Code of Civil Procedure, that the suit should have been rejected summarily under Order VII, Rule 11 (d) of the C.P.C. as it is barred under the law of limitation. The application was opposed by the original plaintiffs and it was rejected. 2 W.P.No.4915 of 2011 2. Learned Counsel for the petitioners submits that remedy available to the plaintiffs against the said order is either to file application for setting aside the ex parte decree under Order IX, Rule XIII of the C.P.C. or plaintiffs ought to have filed regular civil appeal under section 96 (2) read with Order XLI of the C.P.C. He further submitted that the application of the plaintiffs under Order IX, Rule XIII of the C.P.C. is already pending and he can seek remedy in that application. 3. Heard Counsel for the petitioners. Read the order passed by the learned Trial Court. The point raised under Order VII, Rule 11 (d) of the C.P.C. is under the law of limitation. It appears from the order that there are averments in the plaint about obtaining the decree by playing a fraud. Property involved in the suit is a Wakf Board property. Article 59 of the Limitation Act provides the limitation in respect of setting aside any instrument or decree and the limitation provided is three years from the date of the knowledge of the plaintiff. There are mixed questions of facts and law involved in deciding the point of limitation and, therefore, this is not a matter which can be brought under Order VII, Rule XII (d) of the C.P.C. No interference is called for in the order passed by the Trial Judge. Writ Petition is accordingly dismissed. ( MRS MRIDULA BHATKAR, J.) amj/wp4915.11