IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE TWENTY FOURTH DAY OF JUNE TWO THOUSAND AND TEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Revision Petition No.2058 of 2007 Between: Akumarthi Chandra Rao and another .. Petitioner AND Gundu Srikanth and others .. Respondents ORDER: This Civil Revision Petition is directed against the order in E.P.No.234 of 2005 in O.S.No.572 of 2004 on the file of the Additional Senior Civil Judge, Rajahmundry, dated 26-03-2007 by which the judgment debtors 3 and 4 were ordered to be detained in civil prison for two months each respectively. E.P.No.234 of 2005 in O.S.No.572 of 2004 was filed by the decree holder for recovery of the decree debt by way of arrest and detention of the judgment debtors 2 to 5 in civil prison and after setting the judgment debtors ex parte, the Executing Court recorded its satisfaction on 15-02-2007 that the judgment debtors 2 to 4 have got sufficient means to discharge the decree debt and ordered their arrest. On the production of the judgment debtors 3 and 4 in execution of the said arrest warrants, the Executing Court passed the impugned orders in question. The Civil Revision Petition by the judgment debtors 3 and 4 is mainly on the ground that the mandatory provisions of Section 55 and Order XXI Rule 40 of the Code of Civil Procedure were not followed while ordering the detention of the judgment debtors 3 and 4 in civil prison. In spite of service of notice, the decree holder or the other respondents did not enter appearance in this revision petition. Sri K. Venkatesh, learned counsel for the revision petitioners is heard. In an execution petition for recovery of a decree debt by way of arrest and detention of the judgment debtor in civil prison, the provisions of Order XXI of the Code of Civil Procedure lay down a number of safe guards to be complied with before ordering the extreme step of detention of the judgment debtor in civil prison. Order XXI Rule 37 is for issuance of a notice to the judgment debtor to show cause why he should not be committed to the civil prison and under Order XXI Rule 40, after the appearance of the judgment debtor or after the judgment debtor is brought before the Court on being arrested, the Court shall hear and record the evidence of the decree holder and then shall give the judgment debtor an opportunity of showing cause why he should not be committed to the civil prison. Even while passing an order after such an enquiry, the Court can still leave the judgment debtor in the custody of the officer of the Court for a specified period not exceeding 15 days or release him on furnishing security to the satisfaction of the Court in order to give him an opportunity of satisfying the decree. Similarly, under Section 51 proviso also, the Executing Court is duty bound not to order the detention in execution in civil prison unless after giving the judgment debtor an opportunity of showing a cause why he should not be committed to the civil prison, the court, for reasons in writing, is satisfied about the contingencies specified in clauses (a) to (c) of the proviso. Section 55 also mandates that a judgment debtor when arrested in execution of a decree and brought before the Court, the court shall inform him that he may apply to be declared as an insolvent and if the judgment debtor expresses his intention to apply to be declared as an insolvent and furnishes security to the satisfaction of the court, sub-section 4 directs that he should be released from arrest to appear on a specified date. The proceedings of the Executing Court in the present case as disclosed by the material on record do not appear to have complied with any of the above mandatory requirements and after the judgment debtors 3 and 4 were set ex parte and the evidence of PW.1 was recorded and after the judgment debtors 3 and 4 were arrested in execution of a decree and brought before the Court, the satisfaction of the Court about the liability of the judgment debtors 3 and 4 to be detained in prison was not recorded in the manner prescribed by the above provisions after due opportunity and due enquiry and the judgment debtors 3 and 4 were not stated to have been informed about their right to apply to be declared as insolvents, which they could have availed. The violation of the mandatory provisions make the order of detention of the judgment debtors 3 and 4 in civil prison bad in law and the impugned orders have, therefore, to be set aside and the matter has to be remitted back to the Executing Court to be proceeded with in accordance with law after giving due opportunity to both parties. Accordingly, the impugned order in E.P.No. 234 of 2005 in O.S.No.572 of 2004 on the file of the Additional Senior Civil Judge, Rajahmundry, dated 26-03-2007 directing the detention of the judgment debtors 3 and 4 in civil prison for two months is set aside and the matter is remitted back to the Executing Court for being proceeded with and determined in accordance with law after giving reasonable opportunity to both parties. The Civil Revision Petition is allowed accordingly without costs. _____________________ G. BHAVANI PRASAD, J Date: 24-06-2010 Ksn