ORDER
Dr. M.K. Sharma, J.
1. By this common order, I propose to dispose of the appeal as also the petition filed by the ppellant/petitioner as against the order dated 23.9.1996 passed by the Additional District Judge, Delhi, in Execution Case No. 49/1995 arising out of Suit No.393/1994. By the aforesaid order, the executing court has dismissed three applications filed by the appellant. The said applications were under Order 9 Rule 13 CPC along with an application under Section 5 of the Limitation Act and an application under Section
47 CPC.
2. The aforesaid suit was filed by respondent No.1 herein seeking for a decree for rendition of accounts for Rs.76,000/- only against all the defendants including the appellant herein. It was alleged in the said suit instituted that the respondent No.1, the plaintiff was a member of the Delhi Stock Exchange Association Limited, New Delhi, holding two shares of the company M/s. Sikandar Lal & co., but in February, 1983, he sold the said shares to defendant No.3 for a consideration of Rs.90,000/- and the aforesaid amount was paid by defendant No.3 to defendant No.1 on the instructions of the plaintiff and which was accepted by defendant No.1 on the condition that he would do the accounting of the money between the members of the aforesaid stock exchange with the written confirmation of the plaintiff and shall refund the balance to the plaintiff.
3. The defendants filed their written statement. Defendant No.3 had admitted that he had purchased the aforesaid two shares for a consideration of rs.90,000/- and he had paid the said amount to defendant No.1 who alone was liable to render accounts to e plaintiff. In his written statement, defendant No.1 admitted the receipt of rs.90,000/-, but the defense taken by him was that on oral instructions of the plaintiff he had paid a sum of Rs.13,650/- and another sum of Rs.73,500/- to different persons. it was also stated that besides, defendant No.1 was entitled to receive
Rs.50,000/- from the plaintiff and after adjustment of these payments a sum of Rs.2,850/- was due from the plaintiff to him.
4. On the pleadings of the parties, issues were framed and evidence was led by the plaintiff. The defendants were proceeded ex parte. Defendant No.1 also did not lead any evidence and arguments were addressed before the Trial Court on behalf of the plaintiff and defendant No.3.
5. A preliminary decree came to be passed in the suit on 23.8.1993 where by, the suit of the plaintiff was dismissed against defendants No.2 to 4. In the said preliminary decree, it was held that defendant No.1 was holding the money on behalf of the plaintiff which was to be disbursed to the creditors of the plaintiff which was not so disbursed and, therefore, it was held that defendant No.1 was liable to render accounts to the plaintiff in the sum of rs.76,000/- which according to the plaintiff was the amount due to him from defendant no.1 on taking the accounts and which amount
defendant No.1 was holding in trust for the plaintiff. While passing the aforesaid preliminary decree, the court appointed Shri J.K. Bhola, Advocate as a Local Commissioner to take accounts from defendant No.1 of all the dealings and transaction between the plaintiff and defendant No.4 in respect of the aforesaid amount of rs.90,000/-. Pursuant to the aforesaid order, the Local Commissioner made necessary enquiries and took all necessary steps and submitted his report on 31.1.1994. It transpires from the said report filed by the Local commissioner that defendant No.1 in spite of opportunity failed to render the accounts of the plaintiff.
6. Taking into consideration all the facts and circumstances of the case and the report of the Local Commissioner, the Additional District Judge passed a final decree in favour of the plaintiff and against defendant No.1 in the sum of rs.76,000/-. It was also ordered that defendant No.1 would render the accounts of the plaintiff with regard to the aforesaid amount of Rs.76,000/- and that the decree would be executable along with interest at the rate of 8% per annum from the date of the suit till realisation. The aforesaid final decree was passed on 7.8.1995.
7. Pursuant to the aforesaid final decree passed, the plaintiff filed an execution petition which was registered as E.E.No.49/1995. In the said execution petition, an application was filed by judgment debtor No.1 who was defendant No.1 under Order 9 Rule 13 CPC along with the application under Section 5 of the Limitation Act and also the objections under Section 47 CPC. All the aforesaid three applications were taken up for consideration and by order dated 23.9.1996, the said applications were dismissed. The said applications including the objections under Section 47 CPC were dismissed and warrants of attachment were directed to be issued against the appellant.
8. It was submitted by the counsel appearing for the appellant that the order passed by the executing court on all the three applications are without jurisdiction. He submitted that for the fault of the counsel for the appellant, the appellant should not have been allowed to suffer. it was stated that the appellant was unwell having suffered a heart attach k and, therefore, he could not contact his counsel and as the counsel did not take any steps, a final decree came to be passed exparte as against the appellant. He also submitted that sufficient cause was made out by the appellant in the application under Section 5 of the Limitation Act and in ignoring the said causes, the executing court has committed grave error of law. It was also submitted that defendant No. 1 was only a garnishee and, he was discharged as a garnishee in Execution Case No. 56/1993 on 16.3.1993 &
there-fore, no order could have been passed against him.
9. I have considered the submissions of the learned counsel appearing for the appellant as also the counsel appearing for respondent No.1, who was the plaintiff, decree holder.
10. The ground taken for setting aside the exparte decree was that the said decree was passed on fraud committed by the plaintiff. It was also stated that the appellant came to learn about the decree only on 17.10.1995 and accordingly the application for setting aside the final decree was filed on 31.10.1995. The said stand taken by the appellant now is erroneous and contrary to records for it has come on record that the Local Commissioner visited the premises of the appellant on 17.1.1994 and made enquiries about the two shares. The appellant herein was present at the time when the said enquiries were made by the Local Commissioner and, therefore, the appellant had definite knowledge about the passing of the preliminary decree at that stage only.
The other ground taken by the appellant is that he was suffering from hear ailment during the entire period and, therefore, could not take any effective steps in the suit. The said stand is also belied by the fact that the appellant was admitted to hospital on 9.5.1994 and was discharged from the hospital on 24.5.1994 and therefore, the same could not have constituted as a ground for proving sufficient cause.
11. Thus, in my considered opinion, the plea and the stand taken by the appellant for setting aside the ex parte decree and in the application under Section 5 of the Limitation Act were contrary to records and, therefore, the executing court rightly rejected the said two applications filed for setting aside the decree and for condensation of delay. The order passed by the executing court dismissing the objections under Section 47 CPC, in my considered opinion, was also justified for the executing court cannot go behind the decree and decide as to whether the decree passed is legal ro illegal. The objections can be entertained only if it is proved and established that the decree is a nullity. The Additional District Judge on consideration of the records found that no ground has been made out at all
to establish that the preliminary decree as also the final decree was in any manner a nullity. It was the specific case of defendant No.1 in his written statement that he had received a sum of Rs.90,000/- from the plaintiff in his account. The stand that is sought to be taken in this Court as also before the Additional District judge appears to be contrary to he aforesaid stand taken by the appellant herein. Although the appellant was discharged as a garnishee in execution petition No.56/1983 on 16.3.1993, the said discharge cannot have any relevance to the present proceedings. The objections, therefore, were rightly rejected by the executing court.
12. I do not find any infirmity in the order passed by the executing court, nor any error in the exercise of jurisdiction by the executing court. The appeal and the revision petition have no merit and are accordingly, dismissed, Pending applications stand disposed of accordingly.