THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION NO.4819 OF 2010 ORDER: This Writ Petition is filed to declare the action of the second respondent in filing E.A.No.216 of 2007 in E.P.No.40 of 1997 in O.P.No.122 of 1985, on the file of the Additional Senior Civil Judge, Eluru, West Godavari District, after a lapse of five years as illegal, arbitrary and contrary to the Limitation Act, 1963, and consequently to set aside E.A.No.216 of 2007. Facts, in brief, are that the petitioner is an auction purchaser of a tiled house and terraced building situated in Western Street, Eluru, West Godavari District. The Sub-Court, Eluru conducted a public auction on 17.01.2001 in E.P.No.40 of 1997 in O.P.No.122 of 1985. The sale was confirmed on 25.04.2001 and the sale certificate dated 19.06.2001 was issued to the petitioner. The petitioner claims to have sold the property to respondents 2 to 7 under two registered sale deeds. The judgment debtor (the second respondent) filed E.A.No.216 of 2007 in E.P.No.40 of 1997 in O.P.No.122 of 1985 for restitution and restoration of the petition scheduled property under Sections 47, 144, 94 (e) and 151 of the Code of Civil Procedure, 1908. It is the case of the petitioner that the E.A. was filed after a lapse of five years of the public auction being conducted on 17.01.2001. It is stated that the first respondent had earlier acquired different extents of land belonging to the second respondent and his two brothers; the second respondent had objected to the compensation awarded by the first respondent and, thereupon, the matter was referred to the Civil Court; the second respondent filed O.P.No.122 of 1985 on the file of the Additional Senior Civil Judge, Eluru, West Godavari District; by order and decree dated 31.12.1990, the Civil Court enhanced the market value and awarded compensation on yardage basis at Rs.105/- per square yard with all statutory benefits; against the said order the first respondent filed A.S.No.1350 of 1991 before this Court; by judgment dated 29.09.1993 the decree of the Civil Court was modified reducing the market value of the land to Rs.100/- per square yard; and aggrieved thereby the first respondent preferred an appeal to the Supreme Court which, by judgment dated 27.10.1994, reduced and fixed the market value of the acquired land at Rs.65,000/- per acre instead of on yardage basis. Thereafter, the first respondent filed E.P.No.40 of 1997 for recovery of the excess amount of Rs.23,28,296/- stated to be due upto 30.06.2004, after deducting payment of Rs.12,67,879/-, as directed by this Court. It is the petitioner’s case that, though auction was held on 17.01.2001, the petitioner did not object to the public auction and it was only after a lapse of five years that the second respondent filed an application in E.A.No.216 of 2007 which, according to the petitioner, was not maintainable as it was barred by limitation. He is aggrieved by the said E.A. being entertained by the Additional Senior Civil Judge, Eluru, West Godavari District. I see no reason to adjudicate mixed questions of fact and law in proceedings under Article 226 of the Constitution of India as the petitioner can as well raise these contentions before the Court below. All the objections raised by the petitioner in these Writ proceedings can as well be raised by him before the Additional Senior Civil Judge, Eluru, West Godavari District, in E.A.No.216 of 2007 including the question of jurisdiction and limitation I have no doubt that on such objections being raised by the petitioner herein, the Additional Senior Civil Judge, Eluru, West Godavari District shall consider the same and pass orders thereupon in accordance with law. Subject to the above observations, the Writ Petition fails and is, accordingly, dismissed. However, in the circumstances, without costs. _______________________ (RAMESH RANGANATHAN, J) 3rd March 2010 RRB