THE HON’BLE SRI JUSTICE A.GOPAL REDDY CIVIL REVISION PETITION No.512 of 2009 ORDER: This Civil Revision Petition is filed under Section 115 of the Code of Civil Procedure against the docket order dated 06.01.2009 passed by the Principal Junior Civil Judge, Nandigama in E.P.No.62 of 2008 in O.S.No.245 of 2007. Heard the learned counsel for the petitioner/judgment debtor and perused the entire record. Inspite of service of notice, the respondent/decree holder did not choose to put up appearance opposing the petition. For due execution of the decree obtained by the respondent/decree holder, the above E.P came to be filed. In the said E.P notice was directed to be issued to the petitioner/judgment debtor and the matter was adjourned to 23.09.2008, on which date, the judgment debtor was set ex parte and the Court below ordered for his production. On 30.09.2008, on decree holder filing affidavit in proof of means of the judgment debtor, arrest warrant was issued on payment of process. On producing the judgment debtor before the Court below on 06.01.2009, the judgment debtor filed a memo stating that no enquiry as contemplated under Order XXI Rule 40 C.P.C., has been conducted. In support of his contention, he relied upon a judgment of this Court in S.Ismail v. Agraseni Chit Funds (P) Limited[1]. The Court below, by the impugned docket order while holding that the judgment cited by the judgment debtor is not applicable to the facts of the case on hand, since enquiry was already conducted as laid down under Order XXI Rule 40 C.P.C., allowed the petition granting time to the judgment debtor till 05.02.2009 so as to enable him to file I.P and directed that the judgment debtor be released on executing a personal bond equivalent to warrant amount and adjourned the matter to 05.02.2009. Questioning the same, this Civil Revision Petition is filed. Order XXI Rule 40 C.P.C mandates that when a judgment debtor appears before the Court in obedience to a notice issued under Rule 37, or is brought before the Court after being arrested in execution of a decree for payment of money, it is incumbent open the Court to proceed to hear the decree holder and take all such evidence as may be produced by him in support of his application for execution and shall then give the judgment debtor an opportunity of showing cause why he should not be committed to the civil prison. Even a perusal of the docket order would show that no such endeavour has been made by the Court below before committing the judgment debtor to civil prison. In view of the same, unless the enquiry as contemplated under Order XXI Rule 40 C.P.C is held and decided, the petitioner shall not be arrested and detained in Civil Prison in execution of the decree. Hence, the impugned order is set aside and the Civil Revision Petition is allowed. There shall be no order as to costs. _________________ A. GOPAL REDDY, J Date: 26.04.2011 va [1] 2004(5) ALD 138