MADAN, J. - (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. The learned counsel for the respondent Shri B. L. Agrawal, has stated at the bar, that the original receipt for recovery of the amount due from the judgment-debtor, which was duly executed by the defendant, was produced for perusal of the Trial Court and the same was duly accepted and was placed on the record. It has been further contended by the learned counsel for the petitioner-judgment-debtor that the affidavits which were filed by the witnesses in support of the decree cannot be read in evidence on the ground that the same are not permissible to be filed under Order 19 Rule 13 CPC. This contention of the learned counsel for the petitioner is devoid of merit since Order 19 Rule 13 CPC envisages that the person before whom any affidavit is about to be made, shall, before the same is made, ask the person proposing to make such affidavit, if he has read the affidavit and understood the contents thereof and if the person proposing to make such affidavit states that he has not read the affidavit or appears not to understand the contents thereof or appears to be illiterate, the person before whom the affidavit is about to be made shall read and explain and if the person before whom the affidavit is made is satisfied that the person who has sworn in the affidavit has understood the contents thereof, affidavit may be made. In my opinion, the perusal of the order of the learned Trial Court reveals that the requirement of Order 19 Rule 13 CPC that the affidavit was sworn in, in presence of 2 witnesses has been fulfilled, therefore, this contention of the learned counsel for the petitioner is also not tenable. I am further of the considered opinion that the petitioner-judgment-debtor had raised all the objections under Section 47 CPC against the execution of the decree before the Trial Court and which have been duly taken care of in the impugned order and that the said decree having become final, is not open to challenge before this Court by way of present revision petition. I am further of the opinion that there is no jurisdictional error, infirmity or impropriety in the impugned order, referred to above, and the same is not open to challenge in this revision petition. During the course of hearing, learned counsel for the petitioner has placed reliance upon the judgment of this Court in the matter of Jagdish vs. Smt. Premlata Rai (1), in support of his contention that where a decree has been passed solely and wholly on the basis of the affidavits filed before the Court can be treated as decree passed on evidence and the said decree was held to be a nullity. In my considered opinion this decision is distinguishable and has no application to the facts of the present case since the decree under challenge was not only passed on the basis of the affidavits alone but was passed after taking due care of all the documents on the record and, therefore, it cannot be said to be lacking in any manner as alleged. Moreover, objections were filed against the said decree under Section 47 C. P. C. , which have been already dismissed by the Executing Court and no appeal was filed against the impugned order passed by the Trial Court which has since become final and binding on the parties.
(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. As a result of the above discussion and after hearing the learned counsel for the parties and also on perusal of the relevant documents as well as the orders passed by the Court below, I am of the considered opinion that no interference is called for in the impugned order dated 15. 4. 94 passed by the learned Addl. District Judge No. 3, Jaipur City, Jaipur. The revision petition being devoid of merit is accordingly dismissed with no order as to costs. .;