THE HON’BLE SRI JUSTICE K.C. BHANU CIVIL REVISION PETITION No.5830 OF 2003 ORDER: This Civil Revision Petition, under Section 115 of the Code of Civil Procedure, 1908, (for short, “C.P.C.”) is directed against the order, dated 09.01.2003, in E.P.No.50 of 1999 in O.S.No.163 of 1996, on the file of the Junior Civil Judge, Chintalapudi, West Godavari, whereunder and whereby, the petition, filed under Order XXI Rules 37 and 38 and Sections 51 and 55 C.P.C., for issuance of arrest warrant against the respondent/judgment debtor for realization of decree amount, was dismissed. 2. Heard. 3. The petitioner herein is the decree holder, who filed the present petition for arrest of the respondent/judgment debtor stating that though the respondent is having means to pay the decreetal amount, he is willfully avoiding to pay the same. 4. On behalf of the petitioner, PW.1 was examined. On behalf of the respondent, RWs.1 and 2 were examined. 5. The executing Court, after considering the evidence on record, came to the conclusion that the respondent/judgment debtor is having property and therefore, instead of proceeding against the arrest of the respondent, the petitioner can proceed with the sale of the properties of the respondent and accordingly, dismissed the Execution Petition filed by the petitioner. Challenging the same, the present revision petition is filed. 6. Learned counsel for the petitioner/decree holder contended that the availability of other remedy is not a bar for rejecting relief of arrest of the respondent/judgment debtor; that when the respondent has means to pay the decreetal amount and he was wantonly and willfully avoiding to pay the same, it is a just ground to seek for arrest of the respondent and hence, he prays to set aside the impugned order. 7. The respondent refused to receive notice in this Civil Revision Petition. 8. In considering an application for arrest of the judgment debtor, under Order XXI Rule 38 C.P.C., two requirements are required to be established by the decree holder, namely, the judgment debtor has means to pay the decreetal amount and that he was wantonly and willfully avoiding to pay the same. On the ground that the judgment debtor was having some other properties and the decree holder can as well proceed against those properties to recover the decreetal amount, cannot be a ground for dismissing the application filed to arrest the judgment debtor for realization of the decreetal amount. The executing Court has to decide the application under Order XXI Rule 38 C.P.C. basing on the evidence available on record. 9. The evidence on record would go to show that the respondent has got a tiled house and Ac.1-25 cents of land, which was given by the Government. The evidence of RWs.1 and 2 would go to show that the respondent has got a landed property as well as tiled house in Aadamilli Village. The evidence of the petitioner would go to show that the respondent has Ac.5-00 of land worth about Rs.80,000/- to Rs.90,000/- and getting income of Rs.10,000/- per acre and that though he has sufficient means to pay the decreetal amount, he is avoiding to pay the same. The evidence on record would go to show that the respondent was having sufficient means to pay the decreetal amount and that he was avoiding to pay the same. When the two requirements are established, then it is a case where arrest of the respondent can be ordered. Simply because the respondent is not going to abscond from the village and that the petitioner can proceed against the property of the respondent, are not grounds to reject the relief sought for by the petitioner. The impugned order is not based on proper appreciation of evidence available on record. Irrelevant material has been taken into consideration in dismissing the petition for execution by way of the arrest of the respondent. Hence, the impugned order is liable to be set aside. 10. Accordingly, the Civil Revision Petition is allowed setting aside the impugned order, dated 09.01.2003, in E.P.No.50 of 1999 in O.S.No.163 of 1996, on the file of the Junior Civil Judge, Chintalapudi, West Godavari. The trial Court is directed to issue arrest warrant against the respondent/judgment debtor so as to commit the judgment debtor to civil prison on payment of process. But, however, this order is kept under abeyance for a period of four months from the date of receipt of a copy of this order, with a view to give a reasonable opportunity to the respondent/judgment debtor to pay the decreetal amount. If the respondent fails to pay the decreetal amount within the above time stipulated, he shall be sent to civil prison on payment of process by the petitioner. There shall be no order as to costs. _______________ K.C. BHANU, J December 09, 2010 MD IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE NINETH DAY OF DECEMBER TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE K.C. BHANU CIVIL REVISION PETITION No.5830 OF 2003 Between: The Sarpanch .....PETITIONER AND Garapati Krishna Murthy ....RESPONDENT The Court made the following: THE HON’BLE SRI JUSTICE K.C. BHANU CIVIL REVISION PETITION No.5830 OF 2003 December 09, 2010