IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE FIFTEENTH DAY OF JULY TWO THOUSAND AND TEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Revision Petition No.793 of 2006 Between: N. Seshaiah .. Petitioner AND T. Nagaiah and another .. Respondents ORDER: Heard Sri V.B. Subrahmanyam, learned counsel for the revision petitioner. The respondents did not enter appearance. This revision arises against the order in E.P. No.102 of 2003 in O.S. No.9 of 2003 on the file of the Junior Civil Judge’s Court, Badvel, dated 28-11-2005, by which the judgment-debtor therein was forwarded to civil prison for detention for a period of three months. The material papers on record show that the execution petition was filed for recovery of Rs.32,174/- towards the decree debt and Rs.3,174/- towards the costs of execution by way of arrest and detention of the judgment-debtor in civil prison. It is also seen from the record that the judgment-debtor represented before executing Court that he filed I.P. No.11 of 2005 before Senior Civil Judge’s Court, Rajampet, from which he was expecting an order of protection. It is further seen that even when he was arrested and brought before the Court, the judgment-debtor clearly stated that he had no means to pay the execution petition amount and the executing Court straight away directed detention of the judgment-debtor in civil prison in the light of the deposit of subsistence allowance of Rs.3,500/- by the decree-holder. The executing Court also recorded that the judgment-debtor reported that he is suffering from Tuberculosis, in support of which claim no documents were filed. The order of detention is challenged in this revision on grounds of non-compliance with the mandatory provisions of Order XXI of the Code of Civil Procedure as well as the fundamental rights under Articles 11 and 21 of the Constitution of India. It is contended that the ill-health of the judgment-debtor and the absence of any means ought to have been enquired into and conclusions ought to have been arrived at by the executing Court about the liability of the judgment-debtor for arrest and detention. He could not have been detained merely on the ground of his consent without discharging the mandatory legal obligations imposed on the executing Court by law. In C.R.P.M.P. No.1110 of 2006, an interim direction was granted on 24-02-2006 suspending the impugned order and directing the Superintendent of Central Prison, Kadapa to release the judgment-debtor forthwith and the order continues to be in force. The only point for consideration is whether the impugned order of detention in civil prison is legal and sustainable ? Point: The provisions of Section 55 and Order XXI, Rules 37 and 40 of the Code of Civil Procedure make it mandatory and obligatory on the part of the executing court to comply with all the necessary statutory formalities before ordering detention of the judgment-debtor in civil prison. The judgment-debtor ought to be given opportunity of showing cause as to why he should not be committed to civil prison after hearing and recording all the evidence produced by the decree-holder and Section 51 of the Code of Civil Procedure mandates that the Court should be satisfied by the reasons recorded in writing about the presence of means for the judgment-debtor to pay the amount of the decree or some substantial part thereof since the date of decree till the date of execution and refusing and neglecting to pay the same, apart from other stipulations mentioned in the provision. Section 59 of the Code of Civil Procedure lays down that the executing Court may cancel any warrant of arrest of a judgment-debtor on the ground of his serious illness at any time and if the judgment-debtor is not in a fit state of health to be detained in civil prison, the executing court may release him even when he is arrested. None of these mandatory provisions appear to have been even remotely considered by the executing Court before ordering detention of the judgment-debtor and the certified copy of the execution petition and the proceedings thereon filed along with the civil revision petition do not show as to what happened further in I.P. No.11 of 2005 and whether any protection order has been made. It is also clear that in spite of the judgment-debtor reporting to have no means, the executing Court did not conduct any enquiry into the means before ordering detention and similarly in spite of his complaining about suffering from Tuberculosis, it did not attempt to ascertain the truth or otherwise of the said allegation before ordering detention. The impugned order of detention, therefore, cannot be sustained and has to be set aside. Accordingly, the impugned order of detention of the judgment-debtor in civil prison for three months dated 28-11-2005 in E.P. No.102 of 2003 in O.S.No.9 of 2003 on the file of the Junior Civil Judge’s Court, Badvel is set aside and the civil revision petition is allowed accordingly without costs. _____________________ G. BHAVANI PRASAD, J Date: 15-07-2010 Svv