1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1385 OF 1999 Pandu Babaji Koli d/h through his heirs and ors. Petitioners versus Shankar Bali Patil d/h throughhis heirs and ors. Respondents S.V.Sadavarte for petitioners. S.R.Ganbavale for respondents 1(a) to 1(b), 2(a) to 2(d), 4(a) to 4(d), 5 & 6. CORAM : A.S.OKA, J. DATE : 15th February 2010 PC : 1. Heard learned counsel appearing for the petitioners and the learned counsel for the contesting respondents. The challenge in this writ petition under Article 227 of the Constitution of India is to the order dated 22nd June 1998 issued by the Executing Court. A suit for specific performance of agreement for sale was filed by the predecessors of respondent nos.1, 2 and 4. The suit was decreed and a decree for specific performance was passed. An appeal was preferred by the petitioners. During pendency of the appeal, the second respondent therein (original second plaintiff) died. His legal representatives were not brought on record. The appeal was allowed and the Appellate Court purported to set aside the decree. There was a second appeal preferred 2 to this Court which has been dismissed. It appears that one of the original plaintiffs filed an application for execution. The contention in the application for execution appears to be that as a consequence of the abatment of the appeal as against second plaintiff, the appeal did not survive and therefore, the decree passed by the Trial Court stands. It was contended in the execution application that the decree of the Appellate Court as well as order passed in the second appeal was null and void and, therefore, what was operating was the order of the Trial Court. An application was made for amendment of the execution application. It appears that an objection was raised by the petitioners that the execution application was barred by limitation. By the impugned order the said application for amendment of the execution application was allowed and objection of the petitioners on the ground of bar of limitation was overruled. 2. The learned counsel for the petitioners submitted that the decree passed by the Trial Court in favour of original plaintiffs has been set aside in the appeal. He submitted that the name of the deceased-plaintiff no.2 appears in the cause title of the second appeal preferred by the original plaintiffs for challenging the decree of the District Court. His submission is that there was no executable decree. 3. The only objection raised before the Executing Court was on the ground of bar of limitation. The decree sought to be executed has been passed on 10th January 1986. The learned counsel for the petitioners 3 pointed out that the execution application was filed on 10th March 1995. Therefore, in view of Article 136 of the Limitation Act, 1963, the application for execution was filed within limitation and, therefore, the finding of the Trial Court that the execution application was filed within limitation cannot be faulted with. It is not necessary to deal with the objection raised by the petitioners on the ground that there is no executable decree. The said objection cannot be considered in this writ petition as the said objection is not dealt with while passing the impugned order. It is for the petitioners to raise that contention in the proceedings in accordance with law. The said objection is kept open. 4. No case for interference is made out. The writ petition is accordingly rejected. (A.S.OKA, J.)