R.N.Mittal, J. - (1.) THIS judgment will dispose of Civil Miscellaneous No. 927 -C -I, of 1975, and Execution First Appeal No. 454 of 1975. This appeal has been filed by the judgment -debtor against the judgment of the Senior Subordinate Judge,. Ambala, dated March 27, 1974, by which the objections filed by the judgment -debtors were dismissed.
(2.) BRIEFLY the facts of the case are that a decree for recovery of Rs. 26,957/2/9 was passed by Senior Subordinate Judge, Ambala, in favour of the decree -holder against the judgment -debtors. On -December 9, 1965, the decree -holder, in execution of the decree, got attached the property in dispute. The objection petition was filed by Iqbal Singh one of the judgment -debtors under Sections 47 and 60 of the Code of Civil Procedure, inter alia stating that the house in dispute was the main residential house of the judgment -debtors -and they were in possession thereof. The objection petition was contested by the decree -holder. The executing Court held that the judgment -debtor had failed to prove that they had no residential house other than the house in dispute in India. He, however, did not give any findings as to whether the house in dispute was in their occupation or not. Consequently, he dismissed the objection petition. The judgment -debtor filed an appeal against the judgment of the Senior Subordinate Judge to the District Judge. An objection was taken before him that he had no jurisdiction to decide the appeal as the jurisdictional value of the case was more than Rs. 10,000. The District Judge accepted the objection of the decree -holder and ordered that the appeal be returned to the judgment -debtor for presentation to the proper Court, on June 16, 1975. The judgment -debtor filed the appeal in this Court on June 28, 1975, along with an application under Section 5 of the Limitation Act for condonation of delay. An objection has been taken by the learned Counsel for the Respondent that the appeal should be dismissed as it is barred by limitation. I have heard the learned Counsel for the parties but do not find any substance in the contention of the learned Counsel for the Respondent. In the application under Section 5 of the Limitation Act it is stated by the Appellant that the Appellant filed the appeal before the District Judge, Ambala, under the bonafide belief that he had jurisdiction to decide the same. The appeal was accepted by the office of the District Judge, Ambala, without any objection and that no objection was raised by the other party till the date of hearing, i.e., June 10, 1975. The appeal was ordered to be returned on June 16. 1975. The High Court was closed at that time on account of summer vacations. The appeal was filed in this Court on June 28, 1975, which was the first opening day after vacation. After going through the affidavit and taking into consideration the circumstances of the case I am of the view that the mistake of, the counsel was bona fide and, therefore, I condone the delay in filing' the appeal on June 28, 1975. I decide the Civil Miscellaneous accordingly.
(3.) THE only contention of the learned Counsel for the Appellant is that the Appellant had pleaded that the house in dispute is the only residential house with them and they were in occupation thereof. According to the learned Counsel, the Courts without deciding the aforesaid question has held that the judgment -debtor had failed to show that they had no other residential house throughout India. He further argues that the approach of the learned executing Court was erroneous.;