HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY CIVIL REVISION PETITION No.4800 OF 2011 ORDER: This Civil Revision Petition is filed under Section 115 of the Civil Procedure Code challenging the Order, dated 19.09.2011 in E.P.No.103 of 2010 in O.S.No.104 of 2008 passed by the learned Principal Junior Civil Judge, Ponnur, Guntur District, whereby the execution petition is filed by the petitioner for arrest and detention of the J.Dr in civil prison under Order 27 Rules 37 and 38 of Civil Procedure Code, is dismissed on the ground that the petitioner did not avail his remedy i.e., to proceed against the property of the J.Dr and directly approached the Court by filing execution petition for arrest and detention of the J.Dr in civil prison for realization of the decree debt, recording a finding that it is not justifiable as per settled law. 2. The order passed by the executing Court is challenged on the ground that there is no bar to proceed against the person or the property of the J.Dr to realize decree debt, but the trial Court erroneously passed the order misrepresenting the judgment in the case of Vesapogu Yeshaiah Vs. Muppala Subba Rao1 ignoring the judgment in the case of Gottumukkala Venkata Balaramaraju Vs. Indapalati Appa Rao2, thus committed a grave error in dismissing the execution petition and requested to set aside the same. 1 2002 (4) ALT 283 2 2006 (4) ALT 1 2 3. During the course of hearing, Sri N.Siva Reddy, learned counsel for the petitioner reiterated the contentions urged in the petition, whereas none appeared on behalf of the respondents though notices were served on the respondents. 4. As seen from the material on record, the execution petition was filed under Order 21 Rules 37 and 38 of the Civil Procedure Code to arrest the J.Dr and to commit him in civil prison to realize the decree debt. The executing Court in Para 14 of the Order recorded a specific finding as follows:- “…It is an admitted fact by the both parties that the J.Dr is having movable and immovable properties and the evidence on record clearly reveals that the D.Hr without making any attempt to get the decreetal amount from the properties of the J.Dr directly filed this petition sought to issue arrest warrant against him which is not justifiable as per settled law. Thus, the petition is liable to be dismissed.” 5. It is clear from the finding that the reason for dismissal of execution petition filed under Order 21 Rules 37 and 38 of the Civil Procedure Code is failure of D.Hr, the petitioner herein to proceed against the properties and directly approaching the executing Court for realization of the decree debt under Order 21 Rules 37 and 38 CPC by applying the principle laid down in Vesapogu Yeshaiah’s case (referred (1) supra). 6. As seen from the provisions of the Civil Procedure Code there is no bar to proceed either against the property or against person for realization of the decree debt. 3 7. Section 51 of the Civil Procedure Code deals with Powers of Court to enforce execution. Subject to such conditions and limitations as may be prescribed, the Court may, on the application of the decree-holder, order execution of the decree— (a) by delivery of any property specifically decreed; (b) by attachment and sale or by the sale without attachment of any property; (c) by arrest and detention in prison 3[for such period not exceeding the period specified in section 58, where arrest and detention is permissible under that section]; (d) by appointing a receiver; or (e) in such other manner as the nature of the relief granted may require : [Provided that, where the decree is for the payment of money, execution by detention in prison shall not be ordered unless, after giving the judgment-debtor an opportunity of showing cause why he should not be committed to prison, the Court, for reasons recorded in writing, is satisfied— (a) that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree,— (i) is likely to abscond or leave the local limits of the jurisdiction of the Court, or (ii) has, after the institution of the suit in which the decree was passed, dishonestly transferred, concealed, or removed any part of his property, or committed any other act of bad faith in relation tohis property; (b) that the judgment-debtor has, or has had since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same, or (c) that the decree is for a sum for which the judgment-debtor was bound in a fiduciary capacity to account. 8. A bare reading of Section 51 of CPC, there is no bar either to proceed against the property or the person for realization of the amount due under the decree. But, the executing Court had applied 4 the principle laid down in Vesapogu Yeshaiah’s case (referred (1) supra) to the present facts of the case and concluded that proceeding straightway against the person for arrest and detention in civil prison for realization of the decree debt is without any legal basis. 9. Even in the judgment referred above, the Court observed as follows:- “the prayer for arrest of the J.Dr has to be resorted to as a last measure and not at the first instance. Before the order of putting the J.Dr in civil prison is passed, the Court has to give a specific finding that the J.Dr is purposefully avoiding to make payment having sufficient means and unless such finding is recorded the arrest warrant cannot be issued.” 10. It appears from the principle laid down in the judgment that before ordering arrest invoking the procedure under Order 21 Rules 37 and 38 of the Civil Procedure Code, it is appropriate that the D.Hr has to proceed against the property, but that is not supported by any provision in the Civil Procedure Code. 11. In another judgment in Gottumukkala Venkata Balaramaraju, this Court held that:- Once D.Hr furnishes list of properties of J.Dr and their value, burden shifts to J.Dr to disprove the said plea of the D.Hr. Mere denial of the plea is not sufficient to discharge the burden on the J.Dr that he has no means to pay the debt. When the J.Dr failed to place any material throwing light upon the ownership of those properties the conduct of the J.Dr himself as though decree is passed against him is of no consequence. Thus, the burden is on the J.Dr to rebut the evidence produced before the Court by the D.Hr by placing necessary material before the Court. 5 12. Even if these principles applied to the present facts of the case, the duty of the D.Hr is to furnish the details of the movable and immovable properties to establish that the J.Dr possessed sufficient means to pay the decree debt and it is for the J.Dr to show that that his avoidance is not intentional. 13. In any view of the matter when there is no bar under Section 51 CPC to proceed either against the property of the J.Dr or against the person of J.Dr, the principle laid down in the above judgment cannot be applied to the present facts of the case and therefore the order of the executing Court is not based on any provision in CPC and no provision in CPC obligates the D.Hr to proceed initially against the property and later against the person for realization of the decree debt. 14. In the absence of any provision in CPC debarring the D.Hr to proceed against the J.Dr to resort any mode of execution, except under Order 21 Rules 37 and 38 of CPC is an illegality. Therefore, the order passed by the executing Court i.e., learned Principal Junior Civil Judge’s Court, Ponnur, Guntur District dismissing the Execution Petition is contrary to Section 51 of CPC and the said order is liable to be set aside by exercising power under Section 115 of CPC 25. Section 115 of Code of Civil Procedure 1908 enumerated these circumstances to exercise power of receiver viz., (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or 6 (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit : 16. Here, in this Case the executing Court exercised its jurisdiction with material irregularity, which would fall under Section 115 CPC, thereby the order is liable to be dismissed, while directing the executing Court to record a specific finding whether the J.Dr has intentionally avoided to pay the decree debt, since, the executing Court already recorded a finding that the J.Dr own and possessed both movable and immovable property and pass appropriate order in accordance with. 17. With the above direction the Civil Revision Petition is allowed setting aside the Order, dated 19.09.2011 in E.P.No.103 of 2010 in O.S.No.104 of 2008 passed by the learned Principal Junior Civil Judge, Ponnur, Guntur District, with a direction to pass appropriate order recording a finding as to whether the J.Dr intentionally avoided to pay the decree debt or not to order further step in execution petition within one month from the date of receipt of a copy of this order. The miscellaneous petitions pending, if any, shall also stand closed. _________________________________________ JUSTICE M.SATYANARAYANA MURTHY Date: 09.11.2020 IS 7 HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY CIVIL REVISION PETITION No.4800 of 2011 Date: 09.11.2020 IS