THE HON’BLE SRI JUSTICE G.BHAVANI PRASAD CIVIL REVISION PETITION No.4610 OF 2000 Dated:12.08.2010 Between: G.Ramalingam .. Petitioner And Andhra Bank, Branch Mahabubnagar, Represented by its Manager and others .. Respondents ORDER: This Civil Revision Petition is directed against the order passed in E.P.No.67 of 1999 on 28.07.2000 by the Senior Civil Judge, Mahabubnagar, directing the issuance of warrant of arrest for realization of the decretal amount against the revision petitioner, on deposit of batta and subsequent subsistence allowance for one week by the respondent. The suit in O.S.No.43 of 1990 filed by the first respondent herein against the revision petitioner and two others ended in a preliminary decree on mortgage against the mortgaged property and Clause 6 of the preliminary decree stated that if the proceeds of the sale of the property are insufficient for satisfaction of the decree debt, the bank is not barred by any law from applying for a personal decree against the defendants for the amount of the balance. The specific language employed in the preliminary decree in the prescribed format, thus, does not disclose grant of any personal decree against any of the defendants while granting the preliminary decree against the mortgaged property. While so, the bank filed E.P.No.67 of 1999 against the revision petitioner herein for his arrest for realization of Rs.3,22,730/- including the decree debt and costs of execution alleging that the revision petitioner had immovable properties and capacity to pay the decree debt, but he failed to do so. The revision petitioner after entering appearance before the executing Court was endorsed to have failed to file his counter and failed to pay the costs awarded against him in spite of granting sufficient time and, hence, after setting him ex parte, the executing Court examined PW.1 on behalf of the decree holder bank. PW.1 in his evidence before the executing Court stated that the second judgment debtor has a house at Yenumagandla Village and has sufficient means to pay the amount. In the impugned order, the executing Court observed that on considering the totality of the circumstances, it feels that the second judgment debtor has sufficient means to pay the decree debt and is avoiding to pay the same and, hence, it issued a warrant of arrest, which is under challenge in the present revision. The second judgment debtor/revision petitioner contended that the execution proceedings for arrest are ab initio void as preliminary and final decrees passed in the suit only permitted sale of the mortgaged property. The remedies against the mortgaged properties were not exhausted and the executing Court could not have taken any evidence against the judgment debtor in the absence of his personal appearance in view of the positive mandate of Order 21, Rule 40 of the Code of Civil Procedure. The decree holder did not prove anything except stating that he had a house and the executing Court did not even note that the house is a dwelling house in a village which was also mortgaged to the bank and which is the subject matter of O.S.No.42 of 1990. The revision petitioner also contended that being an old and sick person suffering with chronic diseases, he should not have been arrested and detained in view of Section 59(2) of the Code of Civil Procedure and the execution is against the terms of the preliminary decree granted under Order 34, Rule 4 of the Code of Civil Procedure. Sri G.Narender Raj, learned counsel for the revision petitioner, and Sri B. Narasimha Sarma, learned Standing Counsel for the first respondent are heard and respondents 2 to 4 are stated to be not necessary parties to the revision petition. The point for consideration is whether the impugned order of arrest can be sustained? POINT:- Sri G.Narender Raj, learned counsel for the revision petitioner, relied on Ch. Harpal Singh and others v. Lala Hira Lal[1] wherein it was pointed out that the nature of the decree should be such that it can be executed by the arrest of the judgment debtor and circumstances should also exist that an order of arrest can be made against the judgment debtor before ordering an Execution Petition for arrest of the judgment debtor with reference to Order 21, Rules 37 and 40 and Section 51 of the Code of Civil Procedure. It was pointed out that the satisfaction of the Court in this regard is a material factor. It was also observed that even if the judgment debtor may or may not file any written reply, it is for the decree holder to lead his evidence in the presence of the judgment debtor as per Order 21, Rule 40 of the Code of Civil Procedure which evidence should have justification for the arrest of the judgment debtor in execution of the decree. It was further observed that mere non-payment to the decree holder is not enough and refusal or neglect to pay the decree debt in spite of having sufficient means is the criteria. Sri G.Narender Raj, learned counsel for the revision petitioner, also relied on Mayadhar Bhoi and another v. Moti Dibya[2] wherein it was pointed out that satisfaction of the Court as to the existence of the circumstances enumerated in proviso to Section 51 of the Code of Civil Procedure is a condition precedent. It was held that a judgment debtor is not arrested as a matter of course and the Court should be prima facie satisfied about the circumstances contained in the proviso to Section 51 of the Code of Civil Procedure. It is needless to repeat the legal position with reference to any more precedents and it should be firstly noted that the preliminary decree passed herein does not show from the format adopted for such decree that there is straight away any personal decree against any of the judgment debtors. Paragraph No.6 of the preliminary decree clearly shows that the decree holder has to apply for a personal decree against the judgment debtors for any balance, which remains to be paid even after the sale of the mortgaged property. The Execution Petition does not show that there was any personal decree passed against the judgment debtors to take recourse to arrest and detention of the second judgment debtor in civil prison. The final decree dated 02.07.1998 also only authorized the decree holder to sell the mortgaged property and contained no element of a personal decree against any of the judgment debtors. Even otherwise, the evidence of PW.1 before the executing Court baldly stated that the second judgment debtor was having a house at Yenumagandla Village and PW.1 neither identified the house with any particular description nor stated about its value nor is there any document to show that the second judgment debtor has a saleable interest in such house which is sufficient to discharge the decree debt or a substantial portion of the same. The executing Court gave no reason as to how it could find that the second judgment debtor has sufficient means to pay the decree debt and is avoiding to pay the same, and what are those circumstances, the totality of which persuaded the executing Court to find against the second judgment debtor, were not intelligible from the impugned order. Execution by way of arrest and detention in a civil prison interferes with the personal liberty of a judgment debtor and has to be taken recourse to only when all the circumstances specified in the statutory provisions are complied with. The procedure prescribed in Order 21, Rule 40 read with Sections 51 and 55 of the Code of Civil Procedure have to be invariably observed which procedure appeared to have been adopted in breach only in the present case. The second judgment debtor also is stated to be a sick person suffering with chronic diseases at old age and if so execution by arrest and detention in a civil prison also may not be permissible in the light of Section 59 of the Code of Civil Procedure and under the circumstances, the impugned order cannot be sustained and has to be reversed. However, it should be made clear that the setting aside of the impugned order does not disable the decree holder from executing the decree in accordance with law against the judgment debtors therein. Accordingly, the Civil Revision Petition is allowed without costs and the order dated 28.07.2000 in E.P.No.67 of 1999 on the file of the Senior Civil Judge, Mahabubabad, is set aside and the said E.P.No.67 of 1999 is dismissed without costs. ___________________ G. BHAVANI PRASAD, J 12.08.2010 KH [1] AIR 1955 ALLAHABAD 402 [2] AIR 1984 ORISSA 162