G C OIL MILL Vs. KUNDAN MAL

JUDGEMENT

(1.) THE petitioner, who is a judgment-debtor in Civil Suit No. 19/85 and against whom a decree has been passed by the Court of Addl. District Judge No. 3, Jaipur City, Jaipur, for recovery of the decretal amount of Rs. 14,906/- as indicated in the decree, has preferred the revision petition before this Court to contest the decree on the ground that the decree passed by the said Court is a nullity and not executable.

(2.) IT has been contended by Shri Ashok Choudhary, learned counsel for the petitioner, that the decree passed by the Trial Court is a nullity. This contention has been controverted by the learned counsel for the respondent on the ground that the decree has been validly passed and is enforceable against the petitioner and that it is not open for the Executing Court to go behind the decree. A perusal of the documents placed on the record reveals that an application under Order 9 Rule 12 C. P. C. was moved by the judgment-debtor-petitioner on 27. 11. 1987, which was dismissed by the Trial Court on 4. 08. 1990 on merits. No revision or appeal was filed against the said order before the competent Court. A perusal of the order passed by the learned Addl. District Judge No. 3, Jaipur City, Jaipur, in Execution Case No. 33/87, decided on 15. 04. 1994, rejecting the petitioner's application under Section 47 CPC, reveals that a decree was passed ex-parte after the service of summons on judgment-debtor and the judgment-debtor did not take any steps for a period of 1 1/2 years and moved the application under Order 9 Rule 13 CPC after inordinate delay and laches on 27. 11. 1987 for setting aside the decree. All the objections which are now being raised by the learned counsel for the petitioner before this Court were taken by the learned counsel for the judgment-debtor before the Executing Court and the Trial Court, after taking note of all the objections, had dismissed the petitioner's case on merits by order dated 4. 08. 1990 which is impugned in this revision petition. IT is contended by the learned counsel for the petitioner that the contentions which are now being advanced at the Bar were also raised before the Trial Court but same have not been taken note of while passing the impugned order. This argument advanced by the learned counsel for the petitioner is neither tenable nor borne out from the record since perusal of the order passed by the Trial Court reveals that all the objections were duly taken care of by the Trial Court and were over-ruled by the Executing Court and consequently the decree had become final, since no appeal against the said decree had been filed.

(3.) THE learned counsel for the respondent has placed reliance on the judgment of the Apex Court in the matter of Hiralal Moolchand Doshi vs. Barot Raman Lal Ranchhoddas (dead) by L. Rs. (2), wherein the question which arose before the Apex Court was as to whether the Executing Court can go behind the decree validly passed? This contention has been dealt with in para 7 of the judgment, wherein the Apex Court has held that the moment the Executing Court finds that prima facie as to whether material existed, its' task is complete and it is not necessary for the trial Court to go further behind the decree in this respect and all that is to be seen is whether there is some material which exists on the record and hence it is not open to the Executing Court to go behind the decree.