THE HON’BEL SRI JUSTICE GHULAM MOHAMMED CRP NO.1186 OF 2010 ORDER: This civil revision petition is filed against the order dated 23-1-2009 passed in EP No.182 of 2006 in OS No.305 of 2002 by the Principal Senior Civil Judge, Vishakapatnam, allowing the petition filed under Order 21, Rule 37, 38 and Section 55 CPC. 2. The facts stated are:- the decree holder who is 1st respondent in this revision petition filed the above suit OS No.305 of 2002 and the suit was decreed against all the defendants who are respondents 2 to 5 and revision petitioner herein. The 1st respondent-decree holder filed the present EP against judgment debtor no.3 as he is stated to be having movable and immovable properties in and around Visakhapatnam. Under the decree, JDR- 3 revision petitioner is jointly and severally liable to pay the decretal amount. The decree holder examined PW-1 and another in support of his case. PW- 1 deposed that JDR-3 is having movable and immovable properties besides he is running M/s.Spark Enterprises as proprietor. The decree holder also filed Exs.X-2 and X-3, which are tax paid particulars of JDR-3 and turn over statement of Siri Cable of which JDR-3 is managing director. The JDR-3 revision petitioner herein though contested the matter and filed his chief examination by way of affidavit, he did not turn up for cross examination and therefore his chief evidence was eschewed from consideration. In the light of this, the trial Court concluded that JDR-3 avoided to satisfy the decree in spite of having sufficient means to pay and accordingly issued warrant of arrest against him. Assailing the same, the present revision petition is filed. 3. Learned counsel for the petitioner strenuously contended that the trial Court failed to consider that an order of arrest can be made only when the judgment debtor, though capable of satisfy the decree has been avoiding to pay. It is further stated that the decree holder has already received certain sums from other judgment debtors and suppressing the same, he filed the present EP only against JDR-3. It is also stated that the petitioner was not given an opportunity to put forth his case and when he sought to file additional counter the same was returned as not maintainable. It is also stated an order of arrest cannot be granted in a casual and routine manner. On the other hand, learned counsel for the 1st respondent herein submitted that though the decree was obtained, the decree holder could not enjoy the fruits of the decree and till now he has not received single pie. Learned counsel also contended that the decree holder has the option of proceeding against all or any of the JDRs and therefore the trial Court rightly allowed the petition and the revision petition is liable to be dismissed. 4. It is an admitted fact that the decree holder could not enjoy the fruits of the decree for various reasons and he failed to realize the same from other judgment debtors. Ultimately the decree holder choose to proceed against the 3rd judgment debtor, as it is stated, he has means to pay. It is settled proposition of law that the liability of the surety is co-extensive. Though the revision petitioner-JDR no.3 is a guarantor, his liability is on par with that of the principal debtor. But when the decretal amount is sought to be recovered by seeking arrest of the JDR, the Court has to examine whether the JDR has means to pay and in spite of the same, he is avoiding to satisfy the decree. In this case, though the petitioner-JDR-3 has filed the chief examination by way of affidavit, no further opportunity was given to them. Liberty of a person guaranteed under Article 21 of the Constitution cannot be taken way in a routine and causal manner. In the circumstance, the impinged order is set aside and the matter is remanded to the trial Court for fresh disposal in accordance with law after giving opportunity to both the parties to put forth their cases. Appropriate orders be passed thereon within a period of two months from the date of receipt of a copy of this order. 5. Pursuant to the direction of this Court, it is stated that the petitioner has deposited ¼ th of the decretal amount, amounting to Rs.1,89,004/- in compliance of the order of this Court. The 1st respondent-decree holder is permitted to withdraw the said amounts without furnishing any security. 6. In the result, the civil revision petition is allowed. No costs. ____________________ Ghulam Mohammed, J Dated:26-3-2010 Nrg/.