( 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.

( 4 ) ON the other hand, Mr. Patel, learned advocate has tried to support the order of the executing Court.

( 5 ) IN my view, the order passed by the learned Judge of the Executing Court is not sustainable. It is required to be noted that a decree is passed against Deboo Brothers and its partners in Special Civil Suit No. 48/1979. Execution Application is also filed against the judgement debtors. It is required to be noted that the Execution application is not filed against Deboo and company. Learned Judge was therefore required to consider whether the decree in question is required to be executed against judgement debtor " Deboo Brothers. Reading the judgment, one gets an impression that the learned Judge of the Executing Court has gone on the merits of the suit, which is not permissible as the Executing Court is not required to function as an appellate Court against the decree passed in a suit. Learned Judge has not stated even a single word in the order that whether after passing of decree any payment is made and certified as required under Order XXI of Civil Procedure Code. After the decree is passed, payment can be made as provided under Order XXI, Rule 2 of Civil procedure Code, which reads as under :"order XXI 2. Payment out of Court to decree-holder - (1) Where any money payable under a decree of any kind is paid out of Court, [or a decree of any kind is otherwise adjusted] in whole or in part to the satisf

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