The issue of limitation cannot be tried as a preliminary issue if it involves mixed questions of fact and law. The court should decide the issue of limitation along with other issues.

Heard learned counsel for the petitioner as well as learned counsel appearing on behalf of respondent no.2.

2. The petitioner is Defendant in Misc. Case no. 19 of 1992 and 20 of 1992 filed by one Surya Deo Singh (respondent no.2) for setting aside the Compromise decree dated 20.12.1985 passed in Title Suit no.73 of 1985 and partition suit no.139 of 1985.

3. The petitioner has filed the instant writ application against the order dated 04.10.2010 passed by Sub-Judge-II, Ara in Misc. Case no.19 of 1992 and 20 of 1992, by which he admitted the two Misc. cases provisionally for hearing on point of limitation with other issues together at the time of hearing of the case. The case of the petitioner is that issue of limitation should have been decided as preliminary issue.

4. A brief fact of the case is indicated herein below for easy reference:

(i) A Title Partition Suit no.73 of 1985 was filed by the petitioner for partition, whereas Title partition suit no.139 of 1985 was filed by respondent 2nd set. The parties filed compromise petition and both the suits were decreed in terms of compromise on 20.12.1985. However, finding himself deceived in compromise filed Title suit no. 33 of 1986 and Title Suit no. 34 of 1986 for setting aside the compromise decree dated 20.12.1985. The two suits were dismissed on 19.09.1992 as not maintainable.

(ii) The plaintiff/respondent no.2 realizing that he was prosecuting a wrong civil proceeding, filed Misc. case nos. 19 of 1992 and 20 of 1992 under Section 151 C.P.C. for setting aside the compromise decree dated 20.12.1985. The plaintiff also filed a petition on the safe side under Section 14(2) of the Limitation Act for condoning the delay. The office pointed that the Misc. Case is barred by limitation and a petition also has been filed for condonation of delay under Limitation Act. The defendant no.1 opposed the petition by filing rejoinder and prayed to dismiss the Misc. cases, as time barred. The trial court in its order dated 26.07.2008 observed that though the case was admitted on 14.09.1993, however no order on the point of limitation has been passed. The trial court thus fixed 22.08.2008 for hearing on the point of limitation and admission. The plaintiff/respondent no.2 being aggrieved challenged the said order in Civil Revision application bearing C.R. No.1719 of 2008. The civil revision was disposed of on 17.10.2008. The relevant portion of the order passed in C.R. No.1719 of 2008 is quoted herein below:

“That apart, once the petitioner himself had filed an application under Section 5 r/w Section 14 of the Limitation Act, the inclination of the Court below to pass an order on the same before entertaining the two miscellaneous cases, call it by name of admission or hearing, cannot be said to suffering from any jurisdictional error.

Accordingly, both the civil revision applications, being misconceived, are hereby dismissed with a direction to the Court below to ensure that both the miscellaneous cases of the year 1992 are decided expeditiously preferably within a period of six months from the date of receipt/production of a copy of this order.”

5. The trial court on remand of the matter vide order dated 04.10.2010 (Annexure-3), provisionally admitted the case for hearing on the point of limitation as well as on other issues. The trial court observed that the issue of limitation is one of mixed question of facts and law and as such the same would be considered with all other issues at the time of final hearing of the case. Now the defendant-petitioner being aggrieved, has challenged the said order of trial court dated 4.10.2010 (Annexure-3).

6. The defendant-petitioner submits that the trial court ought not to have deferred the hearing on the point of limitation with other issues. He submits that the trial court cannot proceed with other issues unless and until it decided the issue of limitation, as preliminary issue. In support of his submissions, the petitioner has relied upon a d