ORDER
K.A. Mohamed Shafi, J.
1. The revision is directed against the order in E.P.No. 544/97 in O.S. 442/1996 dated 25.3.2000 passed by the Subordinate Judge’s Court, N. Paravur. The judgment debtor in the E.P. is the revision petitioner.
2. The respondents filed the above suit against the revision petitioner seeking specific performance of a contract. The defendant was set ex parte in the suit on 18.3.1997 and the case was posted to 25.3.1997 for payment of the balance court fee and adducing ex parte evidence by the plaintiffs. On that date the plaintiffs paid balance court fee and filed an affidavit. Accordingly the suit was decreed relying on the affidavit filed by the plaintiffs and Exts. A1 and A2 produced by them, as prayed for.
3. Subsequently the plaintiffs filed the above E.P. for execution of the decree. The judgment debtor appeared before the executing court and contended that the execution petition is not maintainable since the decree is not executable and therefore, the E.P. is liable to be dismissed with costs. The objection raised by the judgment debtor was overruled by the executing court and found that the decree is executable. Hence the C.R.P. is preferred by the judgment debtor challenging that order before this Court.
4. The revision petitioner has contended that the affidavit filed by the respondents-plaintiffs in the suit is not evidence under S. 3 of the Evidence Act and since the trial court has not permitted the plaintiffs to file affidavit as contemplated under O. 19 Rr.1 & 2 the C.P.C., the judgment and decree passed by the trial court in this case being based on no evidence, are nullity and ab initio void. Therefore according to him, the decree id not executable. It is also contended by the petitioner that in the above suit filed for specific performance of the contract there are mutual rights and obligations between the plaintiffs and the defendant and in order to obtain a decree the plaintiffs have to satisfy the court that they have been ready and willing to perform their part of the contract. Therefore, he contended that the above decree passed without evidence adduced by the plaintiffs is not executable.
5. The contention of the decree-holders respondents is that the trial court has passed the ex parte decree against the revision petitioner relying upon and accepting not only the affidavit filed by the plaintiffs but also Exts. A1 & A2 produced by the plaintiffs in the suit. It is also contended that since the revision petitioner has no contention that the trial court had no jurisdiction to pass the decree and the only contention raised is that the trial court has committed an error of law in relying upon the affidavit filed by the plaintiffs which is not evidence in the case, he cannot contend in the execution proceedings that the decree is not executable or the same is void without challenging the judgment and decree passed by the trial court in appropriate proceedings before the appropriate forum. It is also contended by the respondents that the executing court cannot go behind the decree and it can only interpret the decree and cannot pass a new or fresh decree in the guise of interpretation of the decree. Therefore, according to the respondents, the contentions raised by the revision petitioner against the executability of the decree are absolutely baseless and unsustainable.
6. The proposition that the executing court cannot go behind the decree if there is no lack in inherent jurisdiction for the court which passed the decree and it has no power to pass a new decree in the guise of interpreting the decree is well settled. It is also well settled that if the court has committed any error of law in passing the decree, unless and until the decree is challenged by way of revision or appeal or in any other appropriate proceedings before the appropriate forum, the defendant cannot contended that the decree is not executable since the decree passed is erroneous in law or not following the procedure.
7. The counsel for the revision petitioner submitted that affidavits cannot be used as evidence since affidavits are not included in the definition of evidence in S. 3 of the Evidence Act and they can be used as evidence only if the court permitted for sufficient reasons as provided under O. 19 R. 1 or 2 of the CPC. Therefore, according to him, the affidavit filed by the respondents before the court cannot be used as evidence to prove the allegations made in the plaint. Therefore, according to him, the decree and judgment passed in the above suit is without any evidence and as such it is a nullity. In support of this contention the counsel for the revision petitioner relied upon the decision in Sudha Devi v. M.P. Narayanan (AIR 1988 SC 1381) wherein the Supreme Court has observed as follows:
“Besides, affidavit are not included in the definition of ‘evidence’ in S. 3 of the Evidence Act and can be used as evidence only if for sufficient reason court passes an order under O.XIX R. 1 or 2 of the Code of Civil Procedure.”
8. The counsel for the revision petitioner also relied upon the decision in Jagdish v. Premlata Rai (AIR 1990 Rajasthan 87) wherein a single Judge of the Rajasthan High Court relying upon the above decision of the Supreme Court has observed as follows:
“17. There is no other material on record to substantiate the case of the plaintiff. Any decree based solely and wholly on the affidavits filed before the Court cannot be treated as a decree based on evidence and it may fall within the purview of nullity”.
9. The proposition that affidavits are not included in the definition of evidence in S. 3 of the Evidence Act and affidavits can be used as evidence only on the court permitting for sufficient reason as provided under O. 19 R. 1 of the CPC is well settled. Therefore, a decree cannot be passed basing wholly on the affidavit filed before the court taking the same as evidence. But in this case it is clear from the judgment passed by the lower court and also the contentions raised by both sides that the lower court relied upon the affidavit filed by the plaintiffs and Exts. A1 and A2 produced by the plaintiffs along with the plaint. Therefore, the above decisions are not helpful to the defendant – revision petitioner to contend that the judgment and decree passed in this case are based on no evidence and therefore, they are nullity in law and as such the decree is not executable, as it is clear that the lower court passed the decree in this case relying upon the affidavit and Exts. A1 and A2 produced in the suit.
10. If the revision petitioner-defendant is aggrieved by the judgment and decree passed by the trial court and has a contention that the trial court has committed an error of law or procedure, the remedy available to him is to challenge the decree in appeal or revision or in other appropriate proceedings before the appropriate forum. He cannot contend that the decree is a nullity or not executable on the ground that an error of law or procedure is committed by the trial court. From the contentions raised by the revision petitioner it is clear that his only contention is that the trial court accepted the affidavit produced by the plaintiffs as evidence without the permission of the court under O. 19 R. 1 of the C.P.C. and committed an error of law in accepting the evidence by affidavit which is not evidence at all under S. 3 of the Evidence Act.
11. Court s having competent jurisdiction even if passed a decree by committing an error of law or procedure, the decree binds the parties, if the decree or judgment is passed by the court after complying with the necessary legal formalities. Since such decrees are binding upon the parties to the suit or proceedings and their representatives-in-interest, they cannot take a contention before the executing court that the decree is not executable and the executing court cannot entertain such contentions and go behind the decree. If the judgment and decree are erroneous in law or on the facts, unless and until they are set aside in appropriate proceedings before the appropriate forum, they are binding upon the parties and their representatives-in-interest. Therefore, the contention raised by the revision petitioner that the ex parte judgment and decree passed in this case against him are null and void ab initio as they are based on no evidence and as such the decree is not executable, is not sustainable and the lower court rightly negatived that contention.
12. The argument advanced by the counsel for the revision petitioner that since suits for specific performance of contract involve mutual rights and obligations on the plaintiff and the defendant, unless and until the plaintiff establishes before the court that he had been ready and willing to perform his part of the contract, a decree cannot be passed and therefore, as the respondents have not adduced any evidence in that regard, the above decree passed against him ex parte is not executable, is also not sustainable. The trial court found on the basis of the evidence on record that the respondents were ready and willing to perform their part of the contract and accordingly passed the decree for specific performance against the revision petitioner. Even if the trial court went wrong in appreciating the evidence in passing the judgment and decree, the remedy available to the revision petitioner is to challenge the same in appropriate proceedings before the appropriate forum. In an execution proceeding and defendant-judgment debtor cannot be heard to contend that the decree is not executable since the decree is passed on wrong appreciation of evidence or insufficient evidence.
Under the circumstances it is clear that all the contentions raised by the revision petitioner against the validity and executability of the decree in this case, are absolutely unsustainable and the executing court rightly negatived those contentions. Therefore, there is absolutely no merit in the challenge against the order passed by the lower court. Hence the C.R.P. is dismissed confirming the order passed by the lower court.