IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE TWENTY FIFTH DAY OF FEBRUARY TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE N.R.L. NAGESWARA RAO CIVIL REVISION PETITOIN No.3760 OF 2010 Between: Yousufuddin Khan ..... PETITIONER AND Mrs. Naseem Begum and others ....RESPONDENTS The Court made the following: THE HON'BLE SRI JUSTICE N.R.L. NAGESWARA RAO CIVIL REVISION PETITOIN No.3760 OF 2010 ORDER: This revision petition is filed against the order of arrest of the revision petitioner/judgment debtor in execution of maintenance decree in E.P.No.52 of 2009 in O.S.No.207 of 1999, passed by the Judge, Family Court, at Hyderabad. The respondents/decree holders, who are the wife and children of the revision petitioner, have filed a suit for maintenance and obtained a decree. In pursuance of the decree, decree holders earlier filed several E.Ps. and part of the amounts were already paid by the revision petitioner. But, however, by the date of filing of the present E.P., a sum of Rs.99,486/- is said to be payable. The judgment debtor has disputed the claim of the decree holders about the liability to pay the quantum of the claim made in the Execution Petition. According to him, there are no grounds to arrest him; that he was regularly attending the Court and that the intention of the decree holders is only to harass him. After considering the material on record and also finding that some amounts are lying to the credit of the suit under O.S.No.370 of 2008 for the marriage expenses of decree holder Nos.2 and 3, a sum of Rs.48,420/- is found payable by the judgment debtor and accordingly, the executing Court ordered arrest of the judgment debtor. Aggrieved by the said order, the present revision is filed. 2. The point for consideration is whether the order of the executing Court in ordering arrest of the judgment debtor for recovery of the E.P. amount is legal and sustainable? 3. Evidently, in order to arrest the judgment debtor in execution of a decree under Order XXI Rule 37 of the Code of Civil Procedure, 1908, (for short, “C.P.C.”), the procedure has been prescribed. It has to be found by the Court that whether the judgment debtor has got means, and intentionally and in order to defeat and delay the execution of the decree, the judgment debtor has not paid the amount. In the absence of such evidence recorded by the executing Court and without any enquiry, the order of arrest suffers from infirmity. At any rate, as can be seen from the record, the judgment debtor has paid substantial amount and also in pursuance of the orders of this Court, has deposited a sum of Rs.20,000/-. Therefore, in view of the above circumstances, as the order of arrest passed by the executing Court is without any enquiry and being against the mandatory requirements of arrest provided by C.P.C., the impugned order is set aside and the matter is remanded to the executing Court to make an enquiry as contemplated under Order XXI Rule 37 C.P.C. and decide as to whether a warrant of arrest shall be issued against the judgment debtor or not. However, till the disposal of the E.P., the judgment debtor is directed to deposit the maintenance amount every month hereafter, without any delay, before 10th of every month. The executing Court is directed to dispose of the E.P. within two months. 4. With the above direction, the Civil Revision Petition is allowed. There shall be no order as to costs. ____________________________ N.R.L.NAGESWARA RAO, J February 25, 2011 MD THE HON'BLE SRI JUSTICE N.R.L. NAGESWARA RAO CIVIL REVISION PETITOIN No.3760 OF 2010 February 25, 2011