THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR CRP NO. 4800 OF 2008 Date of Judgment: 28.9.2011 Between: Akkabathula Lakshamana Rao …Petitioner and Sri Karella Eswara Rao ..Respondent THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR C.R.P. NO. 4800 OF 2008 ORDER: The judgment debtor is aggrieved by the order dated 16.10.2008 passed by the executing court in EA No. 405 of 2008 in EP No. 376 of 2002 in OS No. 278 of 2000 on the file of the I-Addl. Junior Civil Judge, Bhimavaram, West Godavari district, whereby he was ordered to be arrested by committing to civil prison for the remaining period of 76 days on the ground that he did not pay the decretal amount. This Court, while admitting the revision on 12.11.2008, granted stay of arrest, subject to condition of the petitioner depositing a sum of Rs.60,000/- to the credit of EP and the learned counsel for the petitioner submits that the said order was complied with and has made an offer on behalf of the petitioner that the petitioner shall pay the balance amount also, if he was permitted so by this Court. However, the learned counsel for the respondent contests the maintainability of the present revision petition itself and states that for that reason, he has not sought permission to withdraw Rs.60,000/- already deposited by the judgment debtor in pursuance of the interim order of this court. The learned counsel for the respondent also contests this revision on various grounds which are set out hereunder and has expressed his disagreement to receive any amounts offered to be paid by the petitioner/judgment debtor and has contended that in view of the conduct of the petitioner/judgment debtor, he must complete the period of imprisonment as earlier ordered in EP No. 376 of 2002. In view of that, some details with respect to chronology of events is necessary to be noticed. CHRONOLOGY OF EVENTS: (1) The respondent/decree holder obtained a decree in OS No. 278 of 2000 for recovery of Rs.89,626/- with costs and interest at 12% P.A. prior to suit and 6% P.A. pendentelite under decree dated 29.10.2002. (2) On 17.8.2004 the respondent filed EP No. 376 of 2002 which was allowed by directing the petitioner/judgment debtor to deposit the decretal amount, failing which arrest warrant will be issued. (3) The petitioner/judgment debtor filed CRP No. 4485 of 2004 and obtained interim stay of arrest on condition of deposit of half of the decretal amount within four weeks under orders of this Court dated 17.9.2004. By further order dated 14.10.2004 this Court added a condition of default to the said order dated 17.9.2004 by clarifying that in the event of default, the stay shall stand automatically vacated. By further order dated 27.10.2004 this Court dismissed CRP No. 4485 of 2004 in view of non-compliance of interim order. (4) On 10.12.2004 the petitioner/judgment debtor who was working in railways was removed from service in view of his conviction in CC NO. 877 of 2001. (5) On 7.11.2005 the executing court issued warrant of arrest for non-payment of EP amount in view of the dismissal of CRP No. 4485 of 2004. (6) By order of the executing court, dated 16.11.2005 the petitioner/judgment debtor was arrested and committed to civil prison for a period of three months. (7) On 29.11.2005 the judgment debtor was released from jail in view of the orders passed in IA No. 1517 of 2005 in IP No. 54 of 2005 filed by him. (8) On 25.4.2008 the petitioner/judgment debtor was reinstated into service in existing grade by virtue of the orders of the Central Administrative Tribunal dated 17.3.2008. (9) On 5.3.2008 IP No. 54 of 2007 was dismissed for default. The respondent/decree holder thereafter filed EA No. 405 of 2008 in EP No. 376 of 2002 before the executing court seeking to re-arrest the judgment debtor on the ground that the IP filed by the judgment debtor was dismissed. By order dated 16.10.2008 impugned herein the executing court has allowed the said application by directing the petitioner/judgment debtor to be arrested and committed to civil prison for remaining 76 days. The learned counsel for the petitioner contended that the petitioner has now been reinstated into service together with benefits and has means to pay the decretal amount. He relies upon the payment of Rs.60,000/- to show the solvency of the petitioner/judgment debtor and as such the order of re-arrest under the impugned order is unjustified as the petitioner/judgment debtor has established sufficient means and inclination to pay the balance decretal amount. The learned counsel for the petitioner also relies upon a decision of this Court reported in K. VIJAYAKUMAR VS. N. GURURAJA RAO [1] for the proposition that when there is an alternative mode of recovery of decretal amount, the order of arrest of judgment debtor is not proper. He also relies upon another decision of this Court reported in S.K.SAIDA (EMPLOYER), SUPREME TAILORS VS P.VENKATA NARASAIAH [2] wherein this Court held that if an insolvency petition is filed by the judgment debtor, protection from arrest is given in his favour by law, but if the said insolvency petition is dismissed later, the decree holder may take fresh steps for recovery of the decretal debt in accordance with law. Per contra, the learned counsel for the respondent contends that earlier order of arrest in EP No. 376 of 2002 was also approved by this Court in CRP No. 4485 of 2004 and the said order was implemented for a period of 14 days and thereby in view of the dismissal of insolvency petition subsequently, there is no reason as to why the petitioner/judgment debtor should not be arrested to undergo imprisonment for remaining period of 76 days. The learned counsel also submits that the petitioner is neither bona fide nor his conduct supports any deviation from the order of arrest earlier passed by this Court. The learned counsel submits that in view of the order of this Court in CRP No. 4485 of 2004, the present revision petition itself is not maintainable. I have considered the submissions aforesaid and in my opinion the order impugned cannot be sustained for the following reasons, That there have been three intervening events subsequent to the order passed by the executing court in EP No. 376 of 2002 directing arrest of the petitioner/judgment debtor. It is no doubt true that the said order of the executing court stood confirmed by the order of this Court in CRP No. 4485 of 2004. However, the subsequent events, which the executing court is bound to take into consideration, have been ignored by the executing court while passing the impugned order. Firstly, the petitioner/judgment debtor who was dismissed from service has been reinstated into service as per the directive of the Central Administrative Tribunal in OA NO. 743 of 2007. Secondly, he has already been granted regularization benefits by treating the entire intervening period as period spent on duty and on that count, the petitioner was paid sum of Rs.2,63,907/- as per the documents produced by the respondent himself (received by him under Right to Information Act from South Central Railways). Thirdly, the insolvency petition filed by the petitioner/judgment debtor was dismissed for default on 5.3.2008 and thereafter the decree obtained by the respondent was sought to be executed immediately. The decree holder himself filed EA No. 405 of 2008 seeking re-arrest of petitioner/judgment debtor and in view of the subsequent events as above, which the petitioner/judgment debtor has placed before the executing court, there is no reason as to why the said subsequent events are not taken into consideration by the executing court, while ordering arrest of the petitioner. The petitioner is now working in South Central Railways and is having sufficient means to satisfy the decretal amount, and is willing to pay the decretal amount as demonstrated before this Court, which cannot, therefore, be ignored and his arrest cannot, now, be ordered. The revision petition is allowed, the impugned order is set aside, and E.A.No. 405 of 2008 shall, therefore, stand restored before the executing court which shall give opportunity to both sides to file additional pleadings, if the parties so desire and decide EA No. 405 of 2008 afresh. The amount of Rs.60,000/- deposited by the petitioner/judgment debtor shall abide by the result of the orders of the executing court in EA No. 405 of 2008. There shall be no order as to costs. _________________________ VILAS V. AFZULPURKAR, J Dt. 28.9.2011 KR [1] 2004 (3) ALD 702 [2] 2005 (5) ALT 210