THE HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY C.R.P.NO.4315 OF 2009 1ST DECEMBER 2009 BETWEEN: SUTAPALLI KRISHNA MURTHY .. PETITIONER AND MARIYADALA KASI VISWANATHAM .. RESPONDENT THE HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY C.R.P.NO.4315 OF 2009 O R D E R: This Civil Revision Petition is directed against the order dated 13.8.2009 passed in E.P.No.281 of 2007 in O.S.No.183 of 2003 on the file of Ist Additional Junior Civil Judge, Kovvur, whereby and where under the learned Additional Junior Civil Judge overruled the objections of the petitioner/JDR and issued warrant of arrest. 2. Notice before admission came to be ordered on 18.9.2009. Despite service of notice the respondent/decree holder did not choose to enter appearance. 3. The petitioner is JDR and the respondent is DHR in E.P.No.281 of 2007. The DHR filed E.P. seeking arrest of the petitioner/JDR for realization of the decretal amount. The JDR entered appearance and filed counter resisting the relief sought for by DHR. The JDR pleaded no means. DHR got himself examined as P.W.1 and marked certified copy of the petition and docket order in I.A.No.874 of 2003 as Ex.A1. The JDR got himself examined as RW.1 and marked pension sanction order as Ex.B.1. The JDR is an old age pensioner as evidenced from Ex.B.1. The learned Additional Junior Civil Judge, on considering the material brought on record and on hearing learned counsel appearing for the parties recorded a finding that JDR is having immovable property and thereby proceeded to issue arrest warrant by an order dated 13.8.2009. The said order is assailed in this revision. 4. Heard learned counsel appearing for the petitioner and perused the order impugned in the revision. 5. Learned counsel appearing for the petitioner submits that the executing court has not recorded any specific finding that the JDR having sufficient means neglected to discharge the decretal debt and in the absence of such a finding issuing arrest warrant under Order XXI Rule 37 CPC cannot be sustained. S.51 of CPC reads as here under: “ S.51 Power 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 sale without attachment of any property; (c) by arrest and detention in prison (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 matter 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 me 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 money 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 to his property; or (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. Explanation. In the calculation of the means of the judgment-debtor for the purposes of Cl. (b), there shall be left out of account any property which, by or under any law or custom having the force of law for the time being in force is exempt from attachment in execution of the decree.] Uttar Pradesh-Clause (bb) was added after Cl. (b) by U.R Act 24 of 1954 as under: " (bb) by transfer other than say attachment or without attachment of any property". 6. The only evidence adduced by the decree holder by examining himself is that JDR is having a house property and the same is subject to attachment. Except that piece of evidence no material has been placed to show that JDR has since the date of decree acquired substantial amounts to discharge the decretal debt. The Supreme Court in JOLLY GEORGE VARGHESE VS. BANK OF COCHIN[1] held that the judgment debtor if once had the means to pay the 7. Indisputably the JDR is a pensioner as evidenced by Ex.B.1. He is getting old age pension @ Rs.200/- per mensum. The house allegedly owned by the JDR has already been attached. There is no evidence placed on record by DHR that the petitioner/JDR has sufficient means and having sufficient means he neglected or refused to discharge the decretal amount. Therefore, issuance of arrest warrant in the given facts and circumstances is opposed to the provisions of Sec.51 of CPC. 8. Accordingly, this Civil Revision Petition is allowed at the admission stage setting aside order dated 13.8.2009 passed in E.P.No.281 of 2007 in O.S.No.183 of 2003 on the file of Ist Additional Junior Civil Judge, Kovvur. 1st December, 2009. ( B.Seshasayana Reddy,J ) tnb THE HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY C.R.P.NO.4315 OF 2009 1ST DECEMBER, 2009. [1] AIR (SC) 1980 470