JUDGMENT : SANJAY KUMAR DWIVEDI, J. 1. Heard. Mr. Atanu Banerjee, learned counsel for the petitioner and Mr. Onkar Nath Tiwary, learned counsel for the opposite party. 2. This petition has been filed under Article 227 of Constitution of India for setting aside order dated 02.09.2023 passed by the learned Civil Judge (Senior Division)-VII, Deoghar in Original Suit No. 306 of 2022 whereby application under Order 14, Rule 2 of C.P.C. read with Article 137 of the Limitation Act filed by the defendant has been dismissed. Further prayer has been made to allow the application under Order 14, Rule 2 of C.P.C. 3. Mr. Atanu Banerjee, learned counsel for the petitioner submits that Original Suit No. 306 of 2022 was instituted for specific performance in accordance with contract which is time barred inspite of that learned court proceeded in the matter. He further submits in that view of the matter the petition has been filed under Order 14, Rule 2 of C.P.C. read with Article 137 of the Limitation Act and the learned court has wrongly dismissed the same. He further submit that limitation is pure question of law in view of that the learned court was first required to decide the said issue and thereafter to proceed. He relied in the case of S. Shivraj Reddy Vs. S. Raghuraj Reddy and others, (2024) SCC Online SC 963 and submits that if pure question of law is there, the petition can be decided in view of that the learned court has wrongly proceeded with the suit. He submits that the said petition may kindly be restored. He further relied in the case of M/s Mongia Realty and Buildwell Private Limited Vs. Manik Sethi (Civil Appeal No. 814 of 2022) and submits that if admitted documents are there then limitation can be decided at the earliest. On these grounds he submits that the impugned order may kindly be set aside. 4. Mr. Onkar Nath Tiwary, learned counsel for the opposite party submits that belatedly the said petition has been filed before the learned court and the learned court proceeded with the matter and this point was not pointed out before the learned court. On these grounds he submits that the impugned order may kindly be set aside. 4. Mr. Onkar Nath Tiwary, learned counsel for the opposite party submits that belatedly the said petition has been filed before the learned court and the learned court proceeded with the matter and this point was not pointed out before the learned court. He further submits that the petitioner/defendant has filed also filed a petition dated 14.02.2023 under section 20 of C.P.C. read with order 7 rule 11 of C.P.C. before the learned Civil Judge (Senior Division)-VII, Deoghar and the said petition was dismissed by order dated 29.03.2023 and that order has not been challenged before any higher court and subsequently present petition has been filed under Order 14, Rule 2 of C.P.C. which has been decided by the learned court. He further submits that now the trial has already been concluded and the limitation is one of the issue to be decided in the trial. He submits that argument of both sides has been conclude on 17.08.2024 and the learned court has directed both the sides to file written notes of argument. He submits that there are mixed question of facts and law and in view of that the learned court has rightly passed the impugned order. 5. From the record, it transpires that the learned court has framed eight issues and Issue No. 3 is with regard to the limitation. The petitioner has filed petition earlier under 20 of C.P.C. read with order 7 rule 11 of C.P.C which was rejected by order dated 29.03.2023 thereafter the petition has been filed belatedly. If the suit is barred by limitation that is required to the decided at the earliest but either of the parties has not pointed out before the learned court and the learned court proceeded with the matter and this petition has been filed and issue of limitation was also framed and notice of power of attorney has been issued on 05.04.2022 upon the sole opposite party and it has been contended in the plaint that cause of action has arose on the date of receiving the said legal notice whereby power of attorney was cancelled. If such a situation is there that certainly it is mixed questions of facts and law and for that evidence is required to be led by both the parties to prove as to whether it is barred by limitation or not. 6. The judgement relied by the learned counsel of the petitioner in the case of S. Shivraj Reddy (supra) is concerned, in that case it has been held when limitation is the pure question of law and from the pleadings itself it become apparent that a suit is barred by limitation then of course it is the duty of the court to decide limitation at the outset even in the absence of a plea. Further, it has been held that however, in the cases where the question of limitation is a mixed question of fact and law and the suit does not appear to be barred by limitation on the face of it, that is required to be proved by way of raising issues. 7. What has been discussed hereinabove is the mixed question of fact and law. Further the argument of both sides has already been concluded. Limitation is one of the issue. 8. In the case of M/s Mongia Realty and Buildwell Private Limited (supra) the Hon’ble Supreme Court has held that the limitation is not pure question of law in the facts of that case that cannot be decided and in view of the order of the learned trial court as well as High Court has been set aside by the Hon’ble Supreme Court and direction has been issued that issue of limitation may be decided along with other issues at trial. 9. The identical was the situation so far the case in hand is concerned. In that view of the matter the judgment relied by the learned counsel for the petitioner in the case of M/s Mongia Realty and Buildwell Private Limited (supra) is not helping the petitioner rather it is helping the sole opposite party. 10. In view of above, there is no illegality in the impugned order and accordingly, this petition is dismissed. Pending I.A, if any, stands disposed of.