ATUL HASMUKHLAL SHAH Vs. DEBOO BROS

JUDGEMENT

(1.) By filing this Civil Revision Application under Section 115 of Civil Procedure Code, the applicant has challenged the order passed by Executing Court in Special Darkhast No.17/1990. By the impugned order, the Executing Court has dismissed the execution application filed by the applicant " original decree holder.

(2.) The applicant herein instituted a suit being Special Civil Suit No.48/1979 against Deboo Brothers, a partnership firm as well as against its partners. In the said suit, a money decree was passed by the trial Court and said Deboo Brothers was directed to pay Rs.43,352/- with 12% interest to the applicants " decree holder of the aforesaid suit. On the basis of said decree, the applicants herein filed an Execution Application being Special Darkhast No.17/1990 against the judgement-debtor, i.e., Deboo Brothers and its partners. Aforesaid Execution Application was replied by judgement debtor by his reply at Exh.28 contending inter alia that Execution Application is not maintainable and that there is no amount due from the judgement debtor. Learned Judge of the executing Court, thereafter permitted the parties to lead evidence in this behalf and came to the conclusion that the entry made in the books of account of Deboo and Company regarding receipt of money is not genuine entry and that the decretal amount is already satisfied. The Executing Court found that no suit was filed against Deboo and Company and whatever amount received from the defendants were credited in other accounts without obtaining their consent. The Executing Court also found that amount is credited by the plaintiff without filing suit against the defendant. The Executing Court found that no such amount is due against the defendant as per the decree. On that ground, execution application is rejected. Against the said order original decree holder has filed this revision application under Section 115 of Civil Procedure Code.

(3.) Mr.Pardiwala, learned advocate for the decree holder submitted that the Executing Court has not considered the provisions of Order XXI, Rule 2 of Civil Procedure Code and has not appropriately considered whether any adjustment was recorded as per the said provisions. Mr.Pardiwala further submitted that the Executing Court has tried to seat in appeal over the original decree. He also submitted that once a decree is passed, the Executing Court is required to execute the same as it is and the Executing Court cannot consider the merits of the case to find out whether the decree was rightly passed or not.