The main legal point established in the judgment is that the enforceability of a decree and the period of limitation for filing an execution application are determined independently of any purported stay orders or directions for computation of mesne profit.

S. B. SINHA, J.

( 1 ) LEAVE granted.

( 2 ) APPLICABILITY of the provisions of Article 136 as contained in the schedule appended to the Limitation Act, 1963 is in question in this appeal which arises out of a judgment and order dated 26. 7. 2005 passed by a learned Single Judge of the Bombay High Court, Nagpur Bench at Nagpur in writ Petition No. 5927 of 2004 affirming an order dated 26. 10. 2004 passed by the Civil Judge, Junior Division in Regular Darkhast No. 32 of 2001.

( 3 ) SHIVLALSING, predecessor-in-interest of the respondents filed a suit in the Court of Civil Judge, Junior Division, Malkapur. The said suit was marked as Regular Civil Suit No. 250/1965. It was dismissed on 24. 12. 1968. An appeal preferred thereagainst was also dismissed. However, a second appeal filed by the plaintiff-decree holder was allowed upon setting aside the judgment and decree of the Courts below, the operative portion whereof reads as under :

"for the reasons stated in the accompanying judgment, the court allows the appeal, sets aside the decrees of both the courts below dismissing the suit and instead. The court orders that the plaintiffs suit for possession of 32 gunthas area, as shown in the copy of the map Exh. 30, from out of Survey No. 59/1 area 3 acres 12 gunthas, shall stand decreed with costs throughout. The appellant-plaintiff is also entitled to an enquiry under the provisions of the Order XX Rule 12 (1) C. P. C. for mesne profit in respect of the suit land from the date of the suit till the actual delivery of possession. "

( 4 ) AN application for review thereof was filed by the predecessor-in-interest of the appellants herein. The said review petition was dismissed by an Order dated 12. 8. 1985. Appellants preferred a special leave petition thereagainst before this Court and leave having been granted, the matter was marked as Civil Appeal No. 1836 of 1986.

( 5 ) BY an Order dated 21. 3. 1988, this Court passed an order of stay in the following terms :

"the Application for Stay above mentioned being called on for hearing before this Court on the 21st day of March, 1988 upon hearing Counsel for the parties herein. This court Doth Order that the order of this Court dated the 8th may, 1986 passed in Civil Miscellaneous Petition No. 10447 of 1986 be and is hereby confirmed and that pending the hearing and final disposal by this Court of the appeal above mentioned, the operation of the Order dated the 1st July, 1985 of the High Court of Judicature at bombay (Nagpur Bench) Nagpur in Miscellaneous Civil application No. 134 of 1984 in Second Appeal No. 158 of 1972 be and is hereby stayed and the Civil Judge, junior Division, Malkapur, Maharashtra be and is hereby directed to ascertain the amount of mesne profits which shall be deposited by the appellant herein. "

( 6 ) THE said appeal, however, came to be dismissed as being incompetent by this Court opining that no appeal lay in terms of Order 47 Rule 7 of the code of Civil Procedure rejecting a review application.

( 7 ) ADMITTEDLY, an application for executing the said decree was filed by the decree holder only on 10. 12. 2001. Appellant, having been noticed in the said execution proceeding, inter alia, raised a contention about maintainability thereof on the premise that the same was barred by limitation. The Executing Court by an Order dated 26. 10. 2004 rejected the said contention holding :

"it is only a disputed point as to whether the decree was stayed by Honble Apex Court. If it was stayed, the darkhast would be within limitation and if not, it would not be Record of original darkhast is called for copy of writ in respect of stay is on the said record, from Honble apex Court stayed the effect and operation of the order passed by Honble High Court while deciding review petition against the order passed in Second Appeal. It is submitted by Shri Tarkase, learned counsel for the J. D. that the original decree was not stayed. It is submitted by shri Rawant, learned counsel for the