1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 787 OF 2005 WITH CIVIL APPLICATION NO. 1294 OF 2005 Shayarabai w/o Shaikh Adam ) Shaikh Abdul Majid, since deceased ) through her heirs and legal representatives: ) 1. Zubaidabi Usman Khatib ) aged 62 years, Muslim daughter, ) 2. Khairunnisa Jamal Mulla, ) aged 58 years, Muslim daughter ) 3. Sharfuddin Adam Shaikh ) aged 52 years, Muslim son, ) All residing at Salaiwada, ) Sawantwadi, Taluka Sawantvadi, ) Dist. Sindhudurg. ).. Appellants. Vs. 1. abulnath Vishram Samant ) Parulekar, aged 67 years, Occ.Trade, ) resding at Salaiwada, Sawantadi, ) Taluka-Sawantwadi, Dist.Sindhudurg) 2. Sundar Vishram Samant ) Parulekar, aged 50 years, Occu: ) Service. ) 3. Suman Vishram Samant Parulekar, ) S.A.stand dismissed as aged 60 years, ) against R.No.3 to 6 vide Court’s order dt. 18.10.07 4. Sou. Arundhati V. Shetakari ) 2 aged 60 years, Occ: Service. ) 5. Malini Vishram Samant ) Parulekar, aged 72 years, ) Occu: Household. ) 6. Shubhangi Shamrao Samant ) Parulekar, aged 57 years ) Occu: Household. ) Respondents nos. 2 to 6 ) Residig at Topiwala Pragati ) Building, R.A. Road, Goregaon (East) ) Mumbai 400 064. ) 7. Jubedabai w/o Usman Khatib ) aged 47 years Occu: Household, ) 8. Khairunnisa w/o Jamal Mulla ) aged 45 years occu: Household ) 9. Raziya Shaikh Adam ) R.No.9 stands abated aged 45 years Occu: Household. ) 10. Shaikh Majid Shaikh Adam ) aged 39 years occu: nil. ) Respondent Nos. 7 to 10 ) Salaiwada, Sawantwadi, ) Taluka-Sawantwadi, ) Dist: Sidhudurg ) 11. Shaikh Abdul Satta Shaikh ) R.No.11 is abated Abdul Rahim, aged 58 years )vide Court’s order Occu: service, residig at ) Group Chawl No.21, Room No.4, ) Shivaji Nagar, Near Vakola Bridge, ) Santacruz (East), Mumbai 400 055. ) 12. Jamruddin Gafoor Shaha ) aged 61 years, occu: service ) 3 13. Ismail Gafoor Shaha ) aged 57 years, Occu: Trade. ) 14. Gani Gafoor Shaha ) R.13 & 14 abated aged 53 years, Occu: Trade. ) 15. Shaba Gafoor Shaha ) S.A. Dismissed as against aged 51 years, occu: service. )R.N.15. Respondents 12 to 15 residing at ) Bahercha Wada, Sawantwadi ) Taluka-Sawantwadi. ) Dist: Sidhudurg. )..Respondents (Orig.Defendants) Mr Saeeed Akhtar,Advocate, for the appellant. Mr.L.M.Acharya,Advocate, for the respondents. CORAM: J.H.BHATIA,J. DATE : 28th July, 2009 JUDGMENT 1. This is Second Appeal filed by the original plaintiff who claims to be legal heir of one Abdul Majid through her husband. Admittedly, the said Majid had half share in certain property along with Shaikh Abdul Rahim and Shaikh Ayub.. Abdul Majid mortgaged his undivided half share with one Shirodkar. Said Shirodkar filed Regular Civil Suit No.230 of 1930-31 for recovery of mortgage money. The suit was decreed and the property was put to auction. In the said auction, the share of Abdul Majid was purchased by Meghasham Dattatray Shirodkar. Later on, Shirodkar sold away said 4 undivided share in the said property to one Vishram Krishnaji Parulekar on 4.7.1944. Parulekar filed Regular Civil Suit no.182 of 1944-45 for partition and his separate possession to the extent of half share. Suit was filed against the persons who were holding remaining half share as well as against the legal heirs of Abdul Majid. The suit was decreed. The said Parulekar filed execution proceedings, being Regular Darkhast No.41 of 1974 for execution of the decree for partition. In that proceeding, an objection was taken by the present plaintiff/appellant that the execution was barred by limitation. That objection was rejected. The plaintiff also filed Regular Civil Suit No.44 of 1987 seeking declaration that she has become owner of the suit property by adverse possession that the rights of the defendant to take possession have been extinguished by limitation and for perpetual injunction. The suit came to be dismissed. Thereafter, the plaintiff preferred Regular Civil Appeal No.48 of 1995. That appeal was also dismissed. Hence, this Second Appeal. 2. Admittedly, the present appellant/plaintiff claims to be one of the legal heirs of Abdul Majid through her husband. The suit property admittedly belonged to Abdul Majid. Suit filed by Shirodkar on the basis of the mortgage was decreed. In the suit filed by Parulekar for partition, husband of the present appellant was a party. The decree for partition is yet to be fully executed and 5 the execution proceedings are still pending. If the execution of the decree is barred by limitation, that objection could be taken before the Executing Court. Admittedly, in the execution proceedings, she has taken the ground of limitation. If execution of the decree is barred by limitation, the remedy is only for taking objection in the Executing Court and if any party is aggrieved by the order of the Executing Court, appeal may be filed as per law. A separate suit could have been filed. The present appellant never claimed the property by adverse possession prior to filing of the suit. Taking into consideration the facts, I find no substantial question of law involved in the present Appeal. 4. Therefore, the Appeal stands dismissed. 5. As the Appeal itself is dismissed, the Application for injunction does not survive and stands disposed of. (J.H.BHATIA,J.)