IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE TWENTY FIFTH DAY OF JULY TWO THOUSAND AND ELEVEN Present HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL REVISION PETITION No.4402 of 2010 Between: Jambula Srinivasa Reddy .. Revision Petitioner AND Bandi Venkat Reddy .. Respondent The Court made the following: HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL REVISION PETITION No.4402 of 2010 ORDER: Heard Sri N. Vijay, learned counsel representing Sri M.S. Ramchandra Rao, learned counsel for the revision petitioner and Sri J. Suresh Babu, learned counsel representing Sri K. Mahipathi Rao, learned counsel for the respondent. 2. The Civil Revision Petition is directed against the order, dated 26.07.2010, in E.P.No.70 of 2007 in O.S.No.18 of 2003, on the file of the Junior Civil Judge’s Court, Kollapur. 3. The revision petitioner filed the execution petition in O.S.No.18 of 2003 for execution of the money decree by way of arrest and detention of the judgment debtor in civil prison and the judgment debtor opposed the execution on the ground of his filing an appeal in A.S.No.11 of 2007, on the file of the Senior Civil Judge’s Court, Nagarkurnool, against the decree sought to be executed in which stay of execution of decree was granted by the Appellate Court. The judgment debtor also contended that he has no property or income due to which the execution petition for arrest and detention is not maintainable. 4. The Executing Court, after examining the decree holder and the judgment debtor as P.W.1 and R.W.1 and after marking Ex.P-1-copy of registered Sale Deed, dated 16.06.2009, in favour of the judgment debtor and Ex.R-1-copy of Memorandum of Appeal in S.A. No.864 of 2009, on the file of this Court, passed the impugned order. The Executing Court opined that the evidence on record on behalf of the decree holder showed that the judgment debtor had sufficient property and even the cross-examination of the judgment debtor as R.W.1 showed that he purchased Ac. 2.00 of land in June, 2009, for Rs.60,000/- and also transferred his house property and further got Rs.73,000/- on submersion of Ac. 3.00 of land. In spite of referring to the properties of the judgment debtor, the Executing Court went on to note that a Second Appeal is pending before this Court and as the decree holder did not proceed against the properties of the judgment debtor as a first step and did not seek attachment of property before the trial Court, the approach of the decree holder towards the judgment debtor was not fair. That unfairness led the Executing Court to dismiss the execution petition as devoid of merits. 5. The decree holder is before this Court challenging the said order contending that there was no stay of execution of the decree by this Court in S.A.No.864 of 2009 and mere pendency of the Second Appeal is no ground for dismissing the execution petition. The decree holder also complained against the opinion of the Executing Court that the properties of the judgment debtor should have been first proceeded against before proceeding against his person. 6. The point for consideration is whether the impugned order is sustainable in law. 7. Section 51 of the Code of Civil Procedure, 1908 (in short, ‘C.P.C’), enables the decree holder to seek execution of the decree in his favour by any of the modes specified therein and there is no provision or principle by which the decree holder can be compelled to seek one mode of execution in preference to the other in the first instance. While the decree holder would, of course, get the relief he seeks through any of the alternatives permitted under Section 51 C.P.C only if he satisfies the legal requirements prescribed by the Code of Civil Procedure, 1908, for doing so, any unfairness in executing the decree in any of the permitted modes cannot be presumed merely because the decree holder has chosen to proceed against the person of the judgment debtor but not his properties. Notwithstanding the pendency of the Second Appeal before this Court where there was no stay of execution of the decree, it is competent for the decree holder to seek the relief of recovery of the decree debt through arrest and detention of the judgment debtor in civil prison and it is for the Executing Court to determine whether the decree holder has proved all the necessary ingredients for seeking such a relief in execution against the judgment debtor and it could not have refused to consider the execution petition on merits by assuming any unfairness in the relief sought for. 8. Therefore, the impugned order is set aside and E.P.No.70 of 2007 in O.S.No.18 of 2003, on the file of the Junior Civil Judge’s Court, Kollapur, is remitted back to the Executing Court for determination in accordance with law on merits. 9. The Civil Revision Petition is ordered, accordingly, without costs. _______________________ G. BHAVANI PRASAD, J Date: 25th July, 2011 KL HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL REVISION PETITION No.4402 of 2010 Date: 25th July, 2011 KL