S.P.Goyal, J. - (1.) THIS execution first appeal is directed against the judgment of Senior Sub -Judge, Jullundur, dated December 1, 1969, whereby, the execution application as well as the application for attachment of the property of the judgment debtors were dismissed.
(2.) THE appellant was awarded a decree in the amount of Rs. 31,237/12 annas, on July 31, 1953, against the respondents. In the first execution application filed by the decree -holder, the parties entered in to a compromise on March, 12, 1955, to the effect that the decretal amount shall be paid by an instalment of Rs. 3,000/ - every three months and in case of default, the execution could be sought for whole of the amount of the decree. The first two Instalments were paid within time. The third Instalment was paid on December 27, 1955 and the fourth on July 27, 1956. The first default was thus committed in the payment of the instalment due on October 15, 1955, and as a result thereof, the decree holder instituted the execution proceedings on December 28, 1955. The application was opposed by the judgment -debtors who pleaded that the decree was unexecutable as fresh contract had come into being under the said compromise. The objections prevailed with the Court and as a result thereof, the execution application was dismissed on May 17, 1958. Aggrieved by that judgment, the decree holder filed execution First Appeal No. 56 of 1958 in this Court which was allowed by D.K. Mahajan, J (as he then was) vide judgment dated March 14, 960. Two Letters Patent Appeals Nos. 149 and 150 of 1960 were filed against the judgment of the learned Single Judge and during their pendency, execution proceedings were ultimately dismissed on April 24 1961. Again the judgment debtors moved an application for leave to appeal to the Supreme Court which was also dismissed on May 23, 1962. The learned Single Judge ordered the restoration of the execution application and directed the Court to proceed further in accordance with law. That file could not be traced in spite of the best efforts at the fire had taken place in the Record Room at Jullundur and most of the records were burnt. However, in the fresh application filed for execution on September 18, 1961 it was mentioned that the previous application was consigned to the record on September 7, 1964, the claim of the decree -holder having been partly satisfied, but the property was ordered to remain under attachment. It, therefore, seems probable that the application which was consigned to the Record Room on September 7, 1964 was the one which was ordered to be restored by order of the High Court. The execution application filed on September 18, 1964 was dismissed in default on February 24. 1969 and thereafter the present execution application was filed on March 26, 1969. The judgment -debtors opposed the application mainly on the ground that it was barred by time which objection was upheld and the application dismissed by the impugned order. Aggrieved by the order, the decree -holder that come up in this appeal.
(3.) BEFORE the executing Court it was contended by the decree -holder that he was entitled to deduction of the period during which the decree was held to be unexecutable and if that period is allowed to be deducted, the execution application would be within limitation. The executing Court accepted this contention but taking that the period of 12 years would start from the date of the decree, i.e. July 31, 1953, held the application to be barred by time. This approach was wholly erroneous and it is not disputed by the learned counsel for the respondents' before me that the limitation would start from the first default committed in the payment of the instalment which means that the limitation of 12 years would start from October 15, 1955 The sole contest, therefore, between the parties during the course of the arguments was as to whether the decree -holder is entitled to claim allowance as state above while counting the period of 12 years.;